Hughes v. McKenzie — 39 N.Y. St. Rep. 31

Majority

p. 31

William Hughes, Rec’r, Resp’t, v. Marian L. McKenzie et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.)

Headnote

Supplementary proceedings—Receiver—Action by—Injunction—Complaint MUST STATE AMOUNT OF JUDGMENT.

Where, in an action brougnt by a receiver in supplementary proceedings, an injunction is asked to restrain the disposition of money on deposit in a bank, it is necessary that the amount of the judgment should be stated in the complaint, or some allegation showing that the matter in controversy ought to be heard in a court of equity.

Appeal from an order continuing an injunction pendente lite, granted upon the ex parte application of the plaintiff restraining defendants Alexander C. McKenzie and Marian L. McKenzie from withdrawing a certain fund alleged to amount to $2,075.88, or any part thereof, on deposit with the defendant the Brooklyn Savings Bank, in the name of Alexander C.. McKenzie, as trustee for his son William H McKenzie.

Morrison & Kennedy, for app’lts; Philip Orgler, for resp’t

—This is an appeal from an order made by Mr. Justice Bartlett restraining the disposition of money on deposit in the Brooklyn Savings Bank during the pendency of this action.

The money on deposit was credited to Caroline McKenzie, who died January 19, 1890.

The defendant, Alexander C. McKenzie, her husband, was appointed administrator of her estate. He immediately had the money on deposit transferred, without withdrawal, to himself as trustee for William H. McKenzie, his son.

He thereafter withdrew part of the money, used it for his own purposes without in any way charging himself as administrator, or making the same a part of his wife’s estate.

The complaint is defective in that it does not state the amount of the judgment or the claim that plaintiff has against Alexander C. McKenzie; neither does the affidavit state the claim. .

It is true that no issue is made upon that subject, but it is plain that the plaintiff is only entitled to impound sufficient of the money in question to pay his claim and costs.

If by fair inference from the paper it appeared what sum was due, it might be sufficient, but all that can be inferred from the allegations of the complaint is that at least twenty-five dollars is due, from the fact that defendant was examined in supplementary proceedings.

Had the defendants made the point below, the court would undoubtedly have permitted the plaintiff to amend in this respect.

Under the old practice in equity, where it did not appear from the face of complainant’s bill itself that the matter in controversy was beneath the jurisdiction of the court, the defendant could neither demur or move to dismiss the bill. It was sufficient that the bill ordered that the subject in controversy exceeded one hundred dollars. Section 189, Rule in Chancery. However, under the Code, we think there ought to be a statement 'of the amount claimed, or some allegation showing that the matter in controversy ought to be heard in a court of equity.

Therefore, if this injunction is held and the plaintiff is given an opportunity to amend, it ought to be upon condition of his paying the costs of this appeal.

If the affidavits . submitted by the defendants are true, the money sought to be impounded belongs to W. H. McKenzie; but that is a question that cannot well be tried upon affidavits.

The order is affirmed to the extent of plaintiff’s claim, upon plaintiff paying costs of this appeal and amending his complaint so as to state approximately the amount due him from Alexander McKenzie.

Barnard, P. J., and Dykman, J., concur.