Kain v. Larkin — 56 N.Y. St. Rep. 675

Majority

p. 675

Margaret Kain, as Adm’rx, etc., App’lt, v. Patrick Larkin et al., Resp’ts.^[1]

(Court of Appeals,

Filed January 30, 1894.)

Headnote

Pleading—Demurrer.

A demurrer to a complaint on the ground that it does not state sufficient facts to constitute a cause of action, cannot be sustained simply by showing that facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that material facts are only argumentatively alleged.

p. 676

Appeal from judgment of the general term of the supreme court, in the third judicial department, entered upon an order made November 22, 1892, which affirmed a judgment in favor of defendants entered upon an order dismissing the complaint on trial, and also affirmed an order denying a motion for a new trial.

This was a judgment creditor’s action brought by plaintiff, as administratrix of David Kain, deceased, to have adjudged and declared fraudulent and void as to her intestate a transfer of certain real estate made by the defendant, Patrick Larkin, to his daughter, Mary E. Larkin, an infant.

The material facts are stated in the opinion.

G. B. Adams, for app’lt; F. A. Westbrook, for resp’ts.

At the trial of this action, upon the defendants’ motion, the court, without taking any proof, dismissed the complaint upon the ground that it did not state sufficient facts to constitute a cause of action. To this ruling and direction the plaintiff's counsel excepted, The appeal, therefore, presents but a single question, and that is whether, in law, the complaint was sufficient as a pleading to give the plaintiff a standing before the court sufficient to enable her to make out her case by proof if she could. The learned trial judge, as well as the general term, have apparently reached this conclusion upon the theory that this court, when the case was here on a former appeal, decided that sufficient facts had not been averred. Kain v. Larkin, 131 N. Y., 300 ; 43 St. Rep., 197 . In this respect we think that the learned courts below have misapprehended the legal effect of that decision. A careful reading of the opinion of this court upon that appeal will show that we reversed the judgment then before us, rendered after a full trial, upon the ground that the facts and circumstances disclosed by the record, as it then appeared, did, not sustain the findings and conclusion of the court which set aside, as void, the conveyance and transfer attacked, and not because the complaint was defective. It is true, that in discussing the questions then before us, and in pointing out defects in the proof, it was remarked that certain facts had not been proved nor alleged, but it is nowhere intimated that the complaint was defective, or that the necessary facts could not have been proven under it at the trial. Our decision proceeded upon the ground that the proofs, not the pleading, were defective and insufficient. It will be sufficiently favorable to the defendants to consider the complaint as now before us upon a general demurrer upon the ground that it does not state facts sufficient to constitute a cause of action. In such a case the demurrer cannot be sustained unless it appears, admitting all the facts alleged, that no cause of action whatever is stated. The demurrer cannot be sustained simply by showing that facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that material facts are only argumentatively averred. The pleading may be deficient in technical language or in logical statement, but, as against a demurrer or amotion of this character at the trial, the pleading will be deemed to allege whatever can be implied from

p. 677

its statements by fair and reasonable intendment. Zabriskie v. Smith, 13 N. Y., 330 ; Marie v. Garrison, 83 id. 14, 22; Sanders v. Soutter, 126 id., 193; 37 St. Rep., 1 . The complaint in this case clearly avers the recovery of a judgment by the plaintiff against one of the defendants and the return of an execution issued thereon unsatisfied; that the judgment is still due; that after the cause of action accrued the defendant transferred his property which would be subject to the lien of an execution to his wife, daughter and brother by instruments particularly described, and that by the death of the wife and through a satisfaction of the mortgage on the real estate by the brother, and a deed to her by the plaintiff, all this property has become vested in and is now held by the daughter, who has been made a defendant, and has answered the complaint. The complaint then avers that the deed, mortgage and transfer of money in court to defendant’s credit to his wife, daughter and brother, were made without consideration, and with the intent to hinder, delay and defraud the plaintiff of her claim. The relief demanded is that the conveyances and transfer be set aside and declared void, and that a receiver be appointed for the purpose of applying the property to the payment of the judgment. For the purpose of the question now before us, we can assume that these facts all stand admitted upon the record, and when so admitted they establish a cause of action by a judgment creditor against the defendant in the execution, and his fraudulent grantees or transferees entitling him to equitable relief. A fraudulent intent on the part of the grantor and grantee is averred. The evidence necessary to support these allegations of a fraudulent intent may be, and usually is, made up of many different facts and circumstances, but it is not necessary to insert them in a pleading, and it is generally improper to do so. The pecuniary condition of the defendant at the time, the extent of his property, the part transferred and that retained, as well as the nature and extent of the plaintiff’s claim, which subsequently ripened into a judgment, were all facts bearing on the general allegation of fraud. The plaintiff could prove all these facts and circumstances under her complaint. The general allegation that a conveyance or transfer of property was made with the intent to hinder, delay and defraud creditors is broad and sweeping in its operation and effect. It involves many elements, and may, before it can be deemed established, require proof of many other facts and circumstances which may be given in evidence under the general charge, without inserting them in the pleading. We think that the plaintiff is entitled to an opportunity to prove her case, and supply, if she can, the defects in the proof pointed out by us in the review of the former judgment, and that the direction dismissing the complaint was erroneous.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.