Tripp v. Hunt — 61 N.Y.S. 585

Majority

p. 585

TRIPP et al. v. HUNT et al.

(Supreme Court, Appellate Division, Third Department.

November 21, 1899.)

Headnote

Equity — Pleading — Defensive Matter—Adequate Remedy at Law—Demurrer.

In an action to compel defendant to return to plaintiffs, with his indorsement as administrator, a certificate of deposit, of which plaintiffs are owners, so that upon presentation thereof to the bank, so indorsed, they may obtain the money thereon, without which the bank refuses payment, an objection that plaintiffs have an adequate remedy at law against the bank, which by virtue of peculiar circumstances operates to discharge the defendant in equity, must be - affirmatively shown by answer, and cannot be raised by demurrer.

Appeal from trial term, Cortland county.

Action by Daniel B. Tripp and another, as administrators with the will annexed of the estate of John L. Haviland, deceased, against Hermon D. Hunt, as administrator of the estate of Mary S. Haviland, deceased, and the First National Bank of Cortland. Judgment for defendant Hunt upon demurrer, and plaintiffs appeal. Reversed.

Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Kellogg & Van Hoesen, for appellants.

T. E. Courtney, for respondent.

The complaint sets forth but one cause of action, namely, a right existing in the plaintiffs to have the defendant Hunt return to them, with his indorsement as administrator, a certificate of deposit in the defendant bank, of which certificate they are the owners, to the end that, upon plaintiffs’ presentation thereof to the bank so indorsed, they may obtain the money thereon, which the bank meantime, because of the nonpresentation of the certificate so indorsed, withholds. That the plaintiffs have an adequate remedy at law is defensive matter, and should be set up by answer. Tucker v. Railway Co., 78 Hun, 439 , 29 N. Y. Supp. 202 , and cases there cited. It does not affirmatively appear upon the face of the complaint that the plaintiffs have an adequate remedy at law against both defendants in a single action or against the demurring defendant. The complaint does not state that he is responsible. Moreover, he is here charged as administrator, and joined with the bank; and to say that he might have been sued alone individually, at law, is like saying that the plaintiffs might have sued somebody else. The appellants’ contention that the plaintiffs have an adequate remedy at law against the bank, if it had been pleaded, would have been like an allegation that he is not liable because somebody else is. If the plaintiffs have an adequate remedy at law against the bank, and if, by virtue of any peculiar circumstances, that operates to discharge the defendant in equity, his pleading should affirmatively show it. This his demurrer does not do.

The interlocutory judgment is reversed, with costs, and judgment directed for plaintiffs upon the demurrer, with costs, with usual leave to the defendants to answer on payment of costs. All concur, except PUTNAM, J., not voting.