Wood v. Sidney Sash, Blind & Furniture Co.

—The complaint in this action avers that the plaintiffs are judgment creditors of the defendant the Sidney Sash, Blind & Furniture Company; that the defendants the First National Bank of Earlviile, the Sidney National Bank of Sidney, N. Y., and Charles G. Brooks conspired together with the defendant the Sidney Sash, Blind & Furniture Company, an insolvent corporation, to obtain for the said banks, which were large creditors of such corporation, an unlawful preference in the payment of their debts. It then proceeds to state the manner in which that preference was secured, substantially as follows: Judgments in favor of the banks were suffered by the insolvent corporation to be taken against it, and through executions issued "thereon, all the personal property of the corporation that could be sold on execution was sold, and the price realized on such sale was applied upon the judgments. It is also averred that such property was bid off by the banks at a much less sum than it was fairly worth. Luch judgments also became and still stand as prior liens to those of the plaintiffs’ judgments upon the real estate of such corporation. In order to reach the book accounts and choses in action of such corporation, a pretended sale was made to the defendant Brooks of about $15,000 worth thereof for the pretended sum of $7,000, and Brooks took an assignment of the same for the benefit of such banks. It does not appear that Brooks was a credi

It is argued by the appellants’ counsel that such complaint improperly joins two causes of action,—the’ one against the corporation and the banks to set aside the judgments so unlawfully suffered to be taken, and the transfer of property obtained through them, in which the defendant Brooks has no interest whatever, and the determination of-which cause of action would in no way affect Brooks; the other a cause of action to set aside the transfer of the accounts and choses in action to Brooks, which he holds for the benefit of the banks, and in which it would seem that all the defendants are interested. It is true that the facts set forth in the complaint may be so grouped and arranged as to present the two distinct causes of action above stated, but it is also evident that the pleader had no such plan in his mind when he drew such complaint. He based his right of action upon the fact that the defendant the Sidney Sash, Blind & Furniture 'Company, being indebted to the plaintiffs in a large amount, and being utterly insolvent, had under an arrangement with the other defendants, unlawfully appropriated all of its property to securing and preferring the debts of the two banks, and that in the transaction by which it was done Brooks had received, and still holds, some of the property so unlawfully applied. The unlawful transfer, both through the sales under the judgments and the sale to Brooks, is treated as an act done in pursuance of one scheme, and the complaint is framed upon the theory that in equity a right existed on behalf of the plaintiffs to have anything that was done in pursuance of that scheme adjudged fraudulent and void, and to require all those who had received any property through it to account for the amount so received. All persons are therefore made parties who did in any manner participate in such transaction, and received anything through it. The following cases are a plain autlrority that such an action may be brought and such a complaint sustained: Brinkerhoff v. Brown, 6 Johns. Ch. 139 ; Fellows v. Fellows, 4 Cow. 682 ; Boyd v. Hoyt, 5 Paige, 65. True, these cases were decioed before the Code of Civil Procedure, but the ground upon which the decisions are put is that in such cases there is but one cause of action averred; and if that be so, then such a complaint is not demurrable on the ground that two causes of action are improperly joined. See, also, the following cases, decided since the Code of Civil Procedure: Holmes v. Abbott, 53 Hun, 617 ; 25 St. Rep. 644 ; Oakley v. Tugwell, 33 Hun, 357 ; Morton v.Weil, 33 Barb. 30 ; Newbould v. Warrin, 14 Abb. Prac.

Interlocutory judgments affirmed, with one bill of costs only to the plaintiffs, and leave granted to the defendants to withdraw their demurrers and answer within twenty days, upon payment of costs of the demurrers and of this appeal.

All concur.