Lund v. Seamen's Bank for Savings — 37 Barb. 129

Majority

p. 129

Lund vs. The Seamen’s Bank for Savings.

Headnote

The code permits a demurrer to an answer only where it contains new matter. A simple denial of the allegations of the complaint is not within the provision.

A denial may be sham, frivolous or immaterial. In such a case the plaintiff may bring the question before the court summarily by motion, but it is not a ground of demurrer.

In an action against a savings-bank, by the assignee of a depositor, to recover the sum deposited, the defendant cannot set up, as a defense, that the deposit is the proceeds 'of securities belonging to third parties, which-the depositor obtained and fraudulently converted, and that such third parties have notified the defendant of those facts and that they claim the deposit as their property.

A debtor cannot be permitted, by plea or answer, to volunteer the protection of the claims of those with whom he has had no dealings, to defeat his liability for the performance of his contract.

APPEAL from an order made at a special term allowing the demurrer of the plaintiff to the defendant’s answer, with leave to the defendant to serve an amended answer. Thé plaintiff alleged in the complaint that, the defendant was and is a corporation duly created under the laws of the state of Sew York. That on or about the seventeenth day of March, 1860, Anders Larsson deposited with the defendant the sum of twenty-two hundred dollars, which sum the defendant promised and agreed to repay to said Larsson personally, or on his order in writing, and upon the production of the book delivered by the defendant to said Larsson at the time such deposit was made, numbered 81,342, and in which the amount of such deposit was entered to the credit of said Larsson. That afterwards, and on or about the eighteenth day of April, 1860, the said Anders Larsson drew his certain draft upon the defendant, bearing date on that day, whereby he directed the defendant to pay to R. H. Lowrey, Esq., or order, the said sum of twenty-two hundred dollars, and charge book 81,342, and delivered said draft and book to said R. H. Lowrey ;• that the said R. H. Lowrey duly indorsed

p. 130

said draft; that the said draft and hook 81,342 were duly-presented to the defendant, at the city of Hew York, for payment and payment demanded, which was refused, and the said draft has not been paid; that the said sum of twenty-two hundred dollars was duly assigned, and the said draft and book were duly transferred and delivered to the plaintiff; that the plaintiff is the lawful owner of said sum of twenty-two hundred dollars, and the holder of said book and draft, and the defendant is indebted to him in the sum of twenty-two hundred dollars, with interest thereon from the seventeenth day of March, 1860, which the plaintiff claimed, and for which he demanded judgment against the defendant.

- The defendant by its answer alleged that it had no knowledge or information sufficient to form a belief, as to whether Anders Larsson, the depositor named in the complaint, or E. H. Lowrey therein named, or the plaintiff in this action, or either of them, was ever the lawful owner of the moneys referred to in the said complaint, and the defendant denied the several allegations in that behalf mentioned and set forth in the said complaint. And for another and separate defense the defendant alleged, on information and belief, that Pehr Erik Larsson, Anders Olssen, Anders Olssen, jun., Lars Lars-son, Lars Ersson and Martin Janson, severally residing at or near Orebro, in the kingdom of Sweden, are the lawful owners of the moneys, for the recovery of which this action is brought, and claim the same. And that the said claim and ownership of the said Pehr Erik Larsson, Anders Olssen, Anders Olssen, jun., Lars Larsson, Lars- Ersson and Martin Jan-son, is founded upon the following state of facts, viz: That the said Anders Larsson, on or about the first day of January, 1860, being wholly insolvent, though reputed to be possessed of large means and enjoying general credit and confidence, resolved on leaving his residence at or near Ore-bro, in the kingdom of Sweden, and absconding to the United States of America; that before doing so he fraudulently ob

p. 131

tained from the said Pehr Erik Larsson, and the other claimants above named, under various pretenses, the possession of sundry securities, notes or bonds, belonging to them respectively, which he fraudulently and wrongfully converted into money,.and thereupon secretly brought with him to the city of New York; that he brought with him from Sweden no funds or property of any description, except the proceeds of said fraudulent conversion of the property of the said Pehr Erik Larsson, and the other claimants above named, and that the moneys claimed in this action are the identical funds so fraudulently obtained by him as aforesaid, and that the said Pehr Erik Larsson and the said other claimants have given notice of these facts to the defendant, and have claimed and do claim the same as their property, from this defendant. And for a further and separate defense, the defendant denied all knowledge or information sufficient to form a belief whether the said Anders Larsson drew the draft mentioned in the said complaint, or whether the same was indorsed or presented to this defendant as therein mentioned, and denied the allegations in that behalf made in the complaint.

The plaintiff demurred separately to each of the defenses set up in the answer, on the ground that upon its face it does not constitute a defense.

M. S. Bidtuell, for the appellant.

J. G. Smith, for the plaintiff.

By the Court,

The code permits a demurrer to an answer only where it contains new matter. A simple. denial of the allegations of the complaint is not within the provision. (Code, § 153.) A denial may be sham, frivolous or immaterial. In such case the plaintiff may bring the question before the court summarily by motion, but it Is ' not a ground of demurrer. The demurrer to the first de

p. 132

fense is therefore not well taken, and the order appealed from must, to that extent, be reversed.

The demurrer to the second defense presents an entirely different question. The plaintiff is the assignee of a depositor in the defendant’s bank. The defendant alleges that the deposit is the proceeds of sundry securities belonging to Pehr Erik Larsson and others, which the depositor obtained and fraudulently converted' into money, and that Pehr Erik Larsson &c. have notified' the defendant of these facts, and that they claim the deposit as their property.

It must be conceded on authority, as insisted by "the defendant, that the claim of the depositor is a chose in action and not a bailment. (Chapman v. White, 2 Seld. 412, 417. Downes v. The Phoenix Bank, 6 Hill, 297 .) The rule which forbids a bailee to deny the title of his bailor is not applicable. Ho principle of law can however be found which permits a debtor for goods sold, or for money lent or deposited, to set up, as a defense against the claim of his creditor, that his title to the goods sold, or money lent or deposited, is defective or wrongful. That question is of no concern io the purchaser or borrower, unless the third party who claims to have been despoiled of his goods or money will proceed, by process of law, to enforce his rights. It can never be permitted that a debtor may volunteer, by plea or answer, the protection of the claims of those with whom he has had no dealings, to defeat his liability for the performance of his contracts.

The law forbids the defendant to interplead, because these third parties are not in privity with the depositor, but were • claiming by a hostile and superior title. (Fletcher v. Troy Savings Bank, 14 How. Pr. R. 383. Shaw v. Coster, 8 Paige, 343. Marvin v. Elwood, 11 id. 365 .)

It would be a mere evasion to permit the defendant to interpose such rights of third parties as a defense, which they are prohibited from alleging as grounds for an interpleader.

p. 133

The pretended claimants have shown no wish to enforce their claims against the- depositor, if -any they have.

[New York General Term,

May 5, 1862.

The order appealed from should he affirmed as to the second defense, without costs.

IngráJiam, Leonard and RoseIcrans, Justices.]