Majority
p. 430New York Life Insurance and Trust Company, as Trustee, etc., Resp’t, v. Margaret S. Ives et al., Impleaded, etc., Def’ts, Cornelia D. Chauvet et al., App’lts. (Supreme Court, General Term, First Department, Filed June 14, 1895.)
Headnote
Pleadings — Between defendants.Section 521 of the Code does not authorize defendants to litigate, as between themselves independent cross demands, not connected with the cause of action set forth in the complaint.
Appeal from an order, striking out portions of the answer as irrelevant and redundant.
Abram Kling, for app’lts; Charles F. MacLean, for resp’t.
— The fund which the plaintiff holds as trustee, and for the distribution of which this action is brought, did not arise out of the agreement executed J une 16, 1892, but from the rents of real estate received before the will of Francis W. Lasak was set aside. Undoubtedly, any of the defendants may allege that
p. 431
he or she is entitled to all or some share of the apparent interest of a codefendant in the fund by reason of having acquired title thereto or a lien thereon by agreement. But that is not what the appellants seek to do. They set up in their answer that by a contract dated June 16, 1892, Margaret S. Ives, a codefendant, agreed to pay them $180,000, in consideration of their having assigned to her their interest in the estate. This is an independent cause of action, having no relation to the fund which the plaintiff holds in its hands. Had the fund in the suit arisen out of the contract of June 16th, a different question would have been presented. Section 521 of the Code of Civil Procedure does not authorize defendants to litigate, as between themselves, independent cross demands, not connected with the cause of action set forth in the complaint. Smith v. Hilton, 50 Hun, 236 ; 19 St Rep. 340 .
The order should be affirmed, with $10 costs and disbursements.
All concur.