Holmes v. Abbott — 25 N.Y. St. Rep. 644

Majority

p. 644

Alfred A. Holmes, as Committee, etc., of Alanson R. Lewis, Resp’t, v. J. Henry Abbott and others, App’lts.

(Supreme Court, General Term, Fourth Department,

Filed July 20, 1889.)

Headnote

Pleading—J cinder.

In an action by the committee of a lunatic to ascertain the extent and validity of liens against his property, the property which has come into his hands is the subject of the action within section 484, subdivision 9 of the Code, and causes of action in relation to all liens affecting such property may be joined in the complaint.

Appeal from a judgment entered in Jefferson county, upon a decision made at a special term in that county, overruling demurrers to the complaint. At a special term held on the 18th day of September, 1888, plaintiff was authorized to institute and prosecute to judgment, as committee of the property of Alanson R. Lewis, an action in the supreme court 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 liens upon the said property of said Lewis, claimed by the said Abbott, and said Spalsbury and said Polly Butler, either by judgment dr 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 may be necessarily or properly related to the matters aforesaid.” That order was made after hearing, Y. P. Abbott, “ attorney of record for Duane Spalsbury and Henry J. Abbott, judgment creditors, consenting.”

V. P. Abbott and W. S. Farmer, for app’lts; Arthur L. Chapman, for resp’t.

Subdivision 9 of section 484 of the Code of Civil Procedure contains the substance of subdivision 1 of section 167 of the Code of Procedure, which was said by Comstock, J., in New York and New Haven Railroad Company v. Schuyler, Cross, etc. ( 17 N. Y., 592 ), to be “well chosen for the purpose intended, being it is so obscure and so general as to justify the interpretation which shall be found most convenient and best calculated to promote the-ends of justice.”

In Wiles v. Suydam ( 64 N. Y., 178 ), Church, Ch. 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

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to the subject matter oí 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.” Wiles v. Suydam, 64 N. Y., 178 .

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 of Orleans 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.