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personal property which this plaintiff was required to sell under execution, and under order of the various courts of record; and for the purpose of facilitating him in making such sales, and at the same time of having the sale conducted at a public place where it would be likely to sell to advantage, the plaintiff has allowed much property, held by him under levy under attachments and executions, to be removed to and placed in and upon the aforesaid premises of the defendant, and the defendant has realized large gains and profits from the sales so made by him.
That the defendant also desired this plaintiff to send to his said auction store property which came into his possession in the performance of his duty, under the
provisions of the Code of Procedure, in actions to recover the possession of personal property, and plaintiff has, from time to time, caused large amounts of personal property, so in his custody, to be taken to said store to remain there during the time he was by law required to retain the same in his custody.
That, as plaintiff is informed and believes, the said defendant has, from time to time, received, for taking care of said property, considerable sųms of money from the parties who became (pursuant to the provisions of law,) entitled to a delivery thereof from this plaintiff, and also from parties who became entitled to property levied upon under attachments and executions, and placed in said defendant's store, when the attachments and executions were paid or discharged or vacated, so that a sale of the said property was unnecessary.
That it never was intended or agreed by this plaintiff or' defendant that any charge or claim should be made against this plaintiff, or any lien be held by the said defendant, upon the goods so removed to the defendant's store, for storage, the said defendant only relying upon receiving as a compensation such sum as the parties interested in the process would allow to him for his service as auctioneer, or for allowing said goods to remain in his said store.
That said defendant was at all times well aware that said goods and personal property were only in plaintiff's custody as the officer of the law, and were only held by him to answer the exigencies of the process under which the same were taken and held. That there now remains a large amount of property in the custody of this plaintiff as such sheriff, on deposit in the store of said defandant, and amounting to many thousands of dollars in value, which plaintiff is willing and desirous to remove from the said store.
That said defendant now claims to have a lien upon the said goods and personal property for storage, and has presented to plaintiff bills of charges therefor, and claims and insists upon his alleged right to detain the said goods and personal property as security for the payment of the said bills, and has recently threatened to sell the said goods and personal property, and has caused to be served on this plaintiff a notice, of which the following is a copy : [ Insert notice.]
That the said bills and charges so presented and demanded are exorbitant, and far more than a reasonable and just and fair compensation to the said defendant for the storage of the said goods, and his said claims amount to several thousand dollars.
That plaintiff is informed and believes that as to much of said property, so in the store and premises of said defendant, he, the said plaintiff, will be liable to and will incur heavy penalties, as well as required to pay the value of said property, unless he is able to deliver the said property to the parties who shall be entitled to a delivery thereof from him as such sheriff.
That in order to avoid all difficulty with regard to said property, and to obtain the manual possession thereof forthwith, he has offered to pay a fair and reasonable sum for the storage of the said goods, and has desired the said defendant to fix and agree upon some amount or sum less than that demanded by him, and which would fully compensate him for any trouble he may have had with or care he may have bestowed upon the said property, but that said defendant refuses to reduce his charges or to agree upon any other sum.
The plaintiff is informed and believes that various articles of property, so left at the store of the said defendant, have been by his carelessness and negligence lost, and other articles have been destroyed, and others damaged and injured. That plaintiff has been, from time to time, required to pay for articles of property so lost, destroyed, damaged and injured, and said defendant is indebted to plaintiff for goods so lost, destroyed, damaged and injured, to a very large amount, and more than any amount which said defendant may be entitled to charge for any goods now on his premises.
Wherefore the plaintiff demands judgment, that the said defendant forthwith deliver all the said property to the plaintiff; that a receiver thereof may, in the mean time, be appointed; that an accounting may be had between plaintiff and defendant; that the amount (if any) to which said defendant is entitled for storage, labor or cartage upon the said goods or chattels or property, over and above any legal demand of this plaintiff against said defendant, may be ascertained in such manner as this court shall determine.
That in the mean time the said defendant may be enjoined and restrained from selling, injuring, removing or disposing of the said goods, wares and merchandise, or any part thereof, and that the plaintiff may have such other relief or such further relief as may be just and agreeable to equity, besides his costs of action. BROWN, HALL & VANDERPOEL,
For the dissolution of an insolvent banking corporation.
Title of the Cause.
The plaintiff in this action, Charles A. Rapallo, in his own proper person, complains against the defendants, the Mechanics'' Banking Association, and says, that the said defendants are a corporation or association having banking powers, and organized under the act of the Legislature of the State of New-York, entitled “An act to authorize the business of banking,” passed April 18, 1838, and established and doing business in the city of New-York. And the plaintiff says, that he has heretofore kept account with said defendants, and deposited money with them and * drawn for the same by his checks, and that on the 1st day of September, A. D. 1857, he had on deposit with the said defendants, over and above all claims and demands thereon, upwards of $100,000. And the plaintiff further saith, that on the 1st day of September, 1857, he drew his check in the words and figures following, viz.:
New-York, Sept. 1, 1857. MECHANICS' BANKING ASSOCIATION: Pay C. A. Rapallo or bearer one thousand dollars ($1,000).
CHARLES A. RAPALLO.
That on the same day he presented said check for payment to both the president and cashier of the said association, who severally refused to pay the same; and the plaintiff further saith, that he has been informed and believes that the said defendants have suspended payment, and ceased to exercise their ordinary business, and are unable to pay, and are insolvent, and have violated the provisions of the act under which they were organized.
The plaintiff, therefore, prays that the said defendants may be dissolved according to law, and their effects appropriated to pay their debts, and that an injunction may issue restraining the defendant from exercising any of its corporate rights, privileges or franchises, and from collecting and receiving any debts or demands, and from paying out, or in any way transferring or delivering to any person, any of the moneys, property or effects of such corporation until such court shall otherwise order, with a view to a final dissolution of said corporation, and settlement of its affairs according to right and equity, or that the plaintiff may have such other or further relief as may be meet in the premises.
CHARLES A. RAPALLO,
Plaintiff's Attorney, in person.