Barnard v. Brown — 43 N.Y. St. Rep. 602

Majority

p. 602

Persons S. Barnard, App’lt, v. Norman B. Brown et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

1. Ceeditob’s action—Multifabiousness—Waives of objection.

A complaint in a creditor’s action which sets up distinct transfers by the judgment debtor to as many several defendants, against whom no conspiracy is alleged, and demands an accounting and judgment against each, is objectionable as multifarious; but such objection is waived if not taken by demurrer or answer, and the action is maintainable if either of the causes of action is made out against either of the defendants.

2. Same—Husband and wife.

In this action it appeared that the judgment debtor’s estate decreased, that of his wife increased, and it was not clearly shown from whence she* received such additional amounts. Held, that the action was maintained, against the wife.

Appeal from a judgment rendered on the findings and decision of the court at special term (Chautauqua, J une, 1888).

W Woodbury, for app’lt; J. 0. Record and B. W Hoolcer, for resp’ts.

This was a creditor’s bill to reach property, real and personal, or its avails, alleged to have been transferred by the judgment debtor, Norman B. Brown, in fraud of creditors and especially of this plaintiff. The bill is, curiously, framed to include many distinct and separate transfers of the character mentioned by the judgment debtor to as many several defendants, ■each of whom is alleged to be, in regard to such transfers, respectively in complicity with the fraud of the transferror. No conspiracy is alleged between all or any of the persons so joined as ■defendants, except in a single count of the complaint, which relates to a single transaction entirely independent of the great number of separate transfers of property charged to have been made in fraud of creditors.

We seem, therefore, to have in this complaint several distinct ■ ■causes of action against several defendants, with a demand for and accounting by and a judgment against each. How it would be found practicable to frame and enforce a decree as multifarious as the bill, it is difficult to see; but the objection that several' causes of action have been improperly united in the complaint was not taken either by demurrer or answer, and was thereby waived. Code of Civ. Pro., § 499. If, therefore, either of the ■causes of action so united was made out against either of the defendants who is charged with having taken a transfer of property •of the judgment debtor in fraud of creditors, the action was maintained, and it was error to dismiss the complaint as to such defendant. A very careful review of the voluminous and somewhat confused testimony presented by this record has lead us to the ■conclusion, notwithstanding the findings of the court below, that the action was thus maintained against the defendant, Mary A. Brown, the wife of the defendant, Norman B. Brown, the judgment debtor.

_ We think the learned judge at special term failed to attach due significance to the evidence bearing upon the character of the transactions between the two defendants named; that the depletion of the husband’s estate and the augmentation of that of the wife was not well accounted for upon any other theory than that of voluntary transfers of property from the former to the latter, and that such transfers had the effect, and were with the presumed intent to hinder, delay and defraud the creditors of the husband. As to other defendants against whom similar acts and =a like intent were charged, there is by no means the same force of evidence, as there were not the same relations with the judgment debtor; and we do not regard the case as, on the whole, justifying our interference with the negative finding of the trial court as to any of them.

Our conclusion, therefore, is that as to the defendants Norman B. Brown and Mary A. Brown the judgment should be reversed .and a new trial granted, with costs to abide the final award of costs, and that as to all other defendants represented on this appeal the judgment should be affirmed, without costs to either party.

Macomber and Lewis, JJ., concur.