Zimmerman v. Kunkel — 6 N.Y. St. Rep. 768

Majority

p. 768

Louise Zimmerman et al., App’lts, v. George Kunkel et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 15, 1887.)

Headnote

1. Cause of action—What may be united—Code Civ. Pro., § 484, sued. 9.

It is provided by Code of Civil Procedure, section 484, subdivision 9, that two or more causes of action upon claims arising out of the same taansaction or transactions, connected with the same subject of action, and not included with the antecedent subdivision, may be united in the same complaint.

2. Bond—Cancellation of—Action for—Necessary parties.

There were illegal acts done during the continuance of a partnership, and a bond was given by the executors of a deceased partner with one of the defendants, as security to the surviving partners not to make the wrong public; also, a sum of money was paid to that defendant by this plaintiff out of the estate of the decedent as his security that the executors would keep the bond a good cause of action against all the defendants: Held, that the defendant to whom the money had been paid could not be compelled to return it unless the bond were canceled, and that in such an action for that purpose the surviving partners must lie brought in.

H. M. HitcMngs, for app’lt; A. Sims, Jr., for resp’t.

This pleading is protected by section 484 of the Code, subdivision 9. The action does not fall within either of the first eight subdivisions of the section. The ninth subdivision provides for a complaint upon claims arising out of the same transaction or transactions connected with the same subject of action and not included within one of the foregoing subdivisions of this section.

The facts are brief and simple. There were four partners. One of them, the plaintiff’s testator, died. The other three, Dickendorf, Eafflaer and Eibschliecher, wrongfully exacted a bond from the plaintiffs as executors of the dead partner.

The bond has no consideration, and is generally averred to have been given for an illegal purpose. Whatever the purpose, it was not imputable to the plaintiffs. They signed the bond for their testator. The bond itself seems innocent. It only provides for keeping secret the business relations of the firm and its predecessors.

Assuming, therefore, illegal acts done in the life of the firm, and a bond given by the executors of one partner, with the defendant Kunkel as security, to the surviving partners not to make the wrong public, and assuming that the plaintiff took $5,000 out of this estate and delivered it to Kunkel as his security that the executors would keep

p. 769

the bond, a good cause of action as stated against all the defendants. The action grows out of the bond. Kunkel cannot be made to return the money unless the bond is canceled, and that requires the surviving partners to be brought in. The partners need not be affected equally. Ho part of the action is technically ex delicto. It is an action to cancel a bad bond. The executors could not bind their estate by an agreement to use the funds of the estate, even to screen the testator. They were trustees that had misused their trust -funds. Kunkel knew it.

The other defendants have a void bond which Kunkel attempts to use, so that he may keep the money of the deceased.

The case is one of clear equity, and the complaint should be upheld.

Judgment for defendant Kunkel on demurrer reversed and his demurrer overruled, with costs, with leave to Kunkel to answer over on such payment.

Dykman and Pratt, JJ., concur.