Pittsfield National Bank v. Tailer — 38 N.Y. St. Rep. 895

Majority

p. 895

The Pittsfield National Bank, App’lt, v. William H. Tailer, Impl’d, Resp’t.

(Supreme Court, General Term, First Deportment,

Filed May 15, 1891.)

Headnote

Pleading—Complaint—Assignment fob creditors.

A complaint in an action to set aside an assignment for creditors, which alleges that such assignment is null and void on its face, and also that it was made with intent to hinder, delay and defraud the creditors of the assignors, contains but one cause of action, and such statements cannot be required to be separately stated and numbered.

Appeal from an order directing the complaint to be amended by separately stating two causes of action.

John J. Adams, for app’lt; Edward B. Whitney, for resp’t.

The final obect of this action is to set aside a general assignment made by the firm of Boss, Campbell & Co. to the defendant, Tailer, for the benefit of their creditors. The plaintiff is a judgment creditor of the firm, whose execution against their property has been returned unsatisfied. In support of the action it is alleged in the complaint that the assignment is null and void on its face, and also that it was made with the intent to hinder, delay and defraud the creditors of the assignors, including the plaintiff. And it was for the reason alone that it contained these two statements that the motion was made and sustained, that it should be divided into two causes of action.

But the sole object of the action is to set aside the assignment and to permit the plaintiff to satisfy its debt out of the property and assets of the firm. And these allegations were appropriate to sustain its right to that relief. There was but one cause of action, and these charges were made only for the purpose of supporting it. For that object the plaintiff is not confined to one ground of objection, but whatever objections there may be of this general description can consistently be combined to attain the final end expected to be secured.

This principle was sustained in an action of this description in Durant v. Pierson, 29 N. Y. State Rep., 510, where it was also held that the objection that the assignment was void upon its face could be taken under the general allegation that it was made to hinder and defraud creditors. And that resulted from the conclusion necessarily, that the allegation that it was void upon its face, was not of itself a distinct and separate cause of action from the allegation that the assignment proceeded from the fraudulent intent of the assignors. And that setting forth different grounds supporting the defendant’s liability for the same transaction was not the statement of different causes of action was also held in Walters v. Continental Ins. Co., 5 Hun, 343 . And Merchants' Bk. v. Thalheimer, 23 W. Dig., 116, also supports this view. So does Henderson v. Henderson, 44 Hun, 420 ; 9 N. Y. State Rep., 356, and Barnes v. Jones, 16 Hun, 191 .

The cases of Stowell v. Chamberlain, 60 N. Y., 272 , and Bell v. Merrifield, 109 id., 202; 14 N. Y. State Rep., 796, bear no possible relation to this subject. The effect of preceding actions and judg

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ments upon the controversies then before the court, being what was considered and decided in them. While in Wiles v. Suydam, 64 N. Y., 173 , two distinct and separate grounds of liability affecting the defendant in two different capacities, and under different sections of the statute, were what was held to present two causes of action. The case is plainly distinguishable from this, in which the object to be attained is to set aside one written instrument. And Longprey v. Yates, 31 Hun, 432 , is still more remote from the present controversy.

The plaintiff assails this assignment as being made in violation of the protection afforded by statute to the rights of creditors. And in support of its action it was entitled to specify the entire fraud which it was alleged had been perpetrated in the creation of the instrument.

In this complaint no more than that has been attempted. And within Marx v. Toiler, 12 Civ. Pro., 226; 9 N. Y. State Rep., 22, as well as the other authorities previously mentioned, that presented but one cause of action. The order, therefore, should not have been made, and it should be reversed, with ten dollars costs and the disbursements, and the motion denied.

Van Brunt P. J., concurs.