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Holmes v. Abbott

6 N.Y.S. 943 Court N.Y. Gen. Term Decision date 1889-07-20 English

Delivered by Hardin, P. J.

Contents

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p. 943
Holmes v. Abbott et al.
(Supreme Court, General Term, Fourth Department.
July 20, 1889.)

Headnote

Pleading—Misjoinder.
Under Code Civil Proc. N. Y. § 484, subd. 9, providing that the same complaint may unite two or more causes of action on claims arising out of the same transaction, or transactions connected with the same subject of action, a complaint by the committee of the property of an incompetent, for the purpose of ascertaining the extent of the latter’s interest in the property, and the validity and extent of the liens thereon held by various creditors, is not demurrable as improperly joining causes of action.
Appeal from special term, Jefferson county.
By order of court Alfred A. Holmes was authorized to institute and prose■cute to judgment, as committee of the property of Alanson R. Lewis, an action against J. Henry Abbott, Duane Spalsbury, and Polly Butler, “and to join such other parties as defendants therein as are related to the transactions involved in the action, and such as have or claim to have an interest in the property of said Lewis; such action to be prosecuted for the setting aside of
p. 944
liens upon the said property of said Lewis, claimed by the said Abbott, and said Spalsbury, and said Polly Butler, either by judgment or mortgage, or otherwise, and to set aside alleged sales and transfers made by said Lewis to them, or either of them, and for an accounting by them, and for the ascertainment of the just and lawful liens existing upon the property of said Lewis, and directions to the said committee for the satisfaction of the same, and for such other purposes as mayrbe necessarily or properly related to the matters aforesaid.” To the complaint iiled in pursuance of that order defendants demurred, on the ground that causes of action were improperly united. Their demurrers were overruled, and they appeal. Code Civil Proc. N. Y. § 484, subd. 9, provides that two or more causes of action may be united in the same complaint, on claims arising out of the same transaction, or transactions connected with the same subject of action.
Argued before Hardin, P. J., and Martin, J.
V. P. Abbott, for appellants J. H. Abbott, Spalsbury, and Butler. W. S. Parmer, for appellant Vases P. Abbott. Arthur L. Chapman, for respondent.

Subdivision 9, § 484, Code Civil Proc., contains the substance of subdivision 1, § 167, Code Proc., which was said by Comstock, J., in Railroad Co. v. Schuyler, 17 N. Y. 592 , to be “well chosen for the purpose intended, because it is so obscure and so general as to justify the interpretations which shall be found most convenient and best calculated to promote the ends of justice.” In Wiles v. Suydam, 64 N. Y. 178 , Church, C. J., says of it, viz.: “There is certainly ample scope for construction, but it is sometimes difficult to determine what interpretation will best promote the ends of justice. It is probable that the primary purpose of this provision was intended to apply to equitable actions, which frequently embraced many complicated acts and transactions relating to the subject-matter of the action, which it would be desirable to settle in a single controversy.” In the case in hand it is averred that Lewis, the incompetent person, over whose estate the plaintiff has been appointed a committee, is insolvent, and that the various persons named as defendants are interested, or claim to be interested, in the property which, by virtue of the appointment of plaintiff, came into his care and custody. To ascertain the extent of the interest of Lewis in the property, and, incidentally, the validity and extent of the liens thereon held by his respective creditors, is the purpose and scope of the complaint. In short, the property which has come into the custody of the plaintiff, and which, as committee or trustee, he holds, is the “subject of action.” Id. Whether any of the claims of the defendants are prior to the lien and interest of the plaintiff will be determined in the action, and properly so. Bank v. Flagg, 3 Barb. Ch. 316 ; Brown v. Volkening, 64 N. Y. 83 . Plaintiff seeks to ascertain the extent of property or fund, and, in doing so, to have investigated the several claims thereto, and liens thereon. In Garner v. Thorn, 56 How. Pr. 458 , it was said: “The cause of action consists in the several violations and misappropriations which the trust-estate has suffered in passing through the hands of the various defendants, and with which they have been more or less connected. The restoration and preservation of the trust fund is the primary and important subject-matter of the action.” The reasoning and cases cited in the opinion from which the quotation just given is taken support the conclusion reached at the special term. We do not deem it needful or important to add anything further to the opinion delivered by the special term in overruling the demurrers. Judgment affirmed, with costs, with leave to the defendants to withdraw their demurrers and answer upon payment of the costs of the demurrers and of the appeal.

Martin, J., concurs. Merwin, J., not sitting.

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