Green v. Griswold — 17 N.Y. St. Rep. 757

Majority

p. 757

Harriet D. Green, Pl’ff, v. William N. Griswold, Def’t.

(New York Superior Court, Special Term,

Filed July 12, 1888)

Headnote

Creditors bill—Amendment after trial—When allowed.

When a judgment creditor seeking to reach a fund in the hands of a third party states in her complaint that she sues on her own behalf and for such other creditors, similarly situated, who may come in, etc., this limitation does not prevent a judgment in favor of the plaintiff alone, if no other creditors have come in, and an amendment striking out the words of limitation will be allowed after trial and before entry of judgment.

George Walton Greene, for plt’ff; A. R. Dyett and Royal S. Crane, for detits, Griswold; Miller, Peckham and Dixon, for def’t, The Union Trust Company.

The plaintiff, a judgment creditor of defendant, William N. Griswold, by commencement of this action acquired a lien upon all the property of the said defendant acquired before the action began. Storm v. Waddell, 2 Sandf. Ch. Rep., 510; Brown v Nichols, 42 N. Y., 30 . The fact that the plaintiff set forth in her complaint that she brought the suit on behalf of herself and all judgment creditors who * * * shall, in due time, come in and seek relief by, and contribute to the expenses thereof, does not prevent a judgment in favor of the plaintiff alone against the defendants in this action.

Such an allegation was necessary to the sustainment of plaintiff’s cause of action, and plaintiff’s motion, now made, that it should be stricken out is granted. White’s Bank v. Farthing, 101 N. Y., 344 . In point of fact, no other creditors have come in, in due time, since the commencement of this action, or offered to pay the expenses thereof.

The defendant, The Union Trust Company, is entitled to its costs and disbursements before trial, to be charged as against the defendants Griswold, and not in reduction of the plaintiff’s claim.

Let findings to that effect be prepared by counsel for The Union Trust Company.