Mosselman v. Caen — 8 N.Y. Sup. Ct. 647

Majority

p. 647

ISIDORE MOSSELMAN and CONSTANT POELAERT, Trustees of the Estate of SICHEL & COMPANY, Appellants, v. MEYER CAEN, Respondent.

Headnote

Complaint—fail/wre to show title to svhjecPmatter of action—when olgecUon may he taken — Trustees appointed under foreign bankrupt la/w—rights of in this State.

A complaint must always show title in" the plaintiffs of the subject-matter of the action, or such an interest therein as indicates them to be proper parties to the litigation ; otherwise it fails to state facts sufficient to constitute a cause of action in favor of plaintiffs against defendant. This objection may be taken at the trial, and need not be raised by demurrer.

The courts of this State will not recognize or enforce a right or title acquired under foreign bankrupt laws, or foreign bankrupt proceedings, so far as affects property within their jurisdiction, or demands against residents of this State. There is no distinction, in this respect, between cases of voluntary and of involuntary bankruptcy.

The plaintiffs were trustees in bankruptcy of the firm of Sichel & Co., the members of which firm were residents, and subject to the laws, of the kingdom of Belgium, and were adjudged bankrupts in proper proceedings for that purpose in the Tribunal of Commerce, of the city of Brussels. As such trustees they claim to recover the value of certain property alleged to have been fraudulently obtained from the said bankrupts. At the trial the plaintiffs were nonsuited. Held, that this was proper, as the complaint did not state facts sufficient to constitute a cause of action.

Appeal from a judgment in favor of the defendant, entered upon an order dismissing the plaintiffs’ complaint herein. The facts are stated in the opinion.

Another controversy between these same parties, in relation to the same property, has already been- passed upon by the court, and is reported in 34 Barbour, page 66.

Malcolm, Campbell and John B. Fogerty, for the appellant,

cited Fulton Ins. Co. v. Baldwin ( 37 N. Y., 648 ); Patchin v. Peck (38 id., 39); Donnell v. Walsh (33 id., 44); Robbins v. Wells ( 18 Abb., 191 ) ; Lee v. Wilkes ( 27 How., 341 ); Eaton v. Balcom (33 id., 80); Hoyt v. Thompson (1 Seld., 320); Johnson v. Hunt ( 23 Wend., 87 ); Abraham v. Plestoro (3 id., 358); Story Conflict of Laws (§ 419).

p. 648

Lewis Sanders and George N. Sanders, for the respondent,

cited Willitts v. Waite ( 25 N. Y., 586 ); Baldwin v. Hale ( 1 Wall., 223 ); Kelley v. Drury ( 9 Allen, 27 ); De Witt v. Chandler ( 11 Abb., 472 ).

On the trial of this case, the plaintiffs offered to prove all the facts alleged in the complaint; to which the defendant’s counsel objected on the ground that the plaintiffs claiming as foreign trustees appointed by a foreign court, had no right to maintain this action; which objection was sustained. Plaintiffs excepted. Subsequently the defendant moved to dismiss the complaint, on the ground that it did not contain facts sufficient to constitute a cause of action. The court granted the motion and dismissed the complaint, to which plaintiff excepted.

It is obvious that the only point determined by the court below was that raised by the specific objection, to wit: that the trustees in this case have no right to maintain the action. It would not be right therefore, if this court deemed the other grounds now asserted by the counsel for the respondent, to be well taken, to affirm the judgment upon them, because if they had been put forward in the court below, it does not appear that amendments of the complaint, sufficient to have obviated such objections, would not have been allowed.

It is true, as insisted by appellants’ counsel, that the point on which the court disposed of the case, might properly have been taken by demurrer; but it was not of the class that is to be deemed to have been waived unless so taken.^[3] A complaint must always show title in the plaintiffs, of the subject-matter of the action, or such an interest therein as indicates them to be proper parties to the litigation; otherwise it fails to state facts sufficient to constitute a cause of action in favor of plaintiffs against defendant.^[2]

These cases hold, substantially, that a failure to show in the complaint, the title or interest above suggested, leaves such complaint open to the objection that it does not state facts sufficient to constitute a cause of action, and that the objection on that

† † Davis v. The Mayor of New York, 14 N. Y., page 506; Greene v. Breck, 10 Abb., 43 ; De Witt v. Chandler, 11 id., 459.

p. 649

ground may be raised at the trial as well as by demurrer. The plaintiffs show themselves, by the averments of the complaint, to be trustees in bankruptcy of the firm of Sichel & Company. The members of that firm were residents of and subject to the laws of the kingdom of Belgium, and were adjudged bankrupts in proper proceedings for that purpose in the Tribunal of Commerce of the ■city of Brussels. As such trustees, the plaintiffs claim to recover the value of property alleged to have been fraudulently and tortiously obtained from said bankrupts. It is not distinctly averred whether the bankruptcy of Sichel & Co. was voluntary or involuntary (in the sense in which those terms are used in the courts of bankruptcy of the United States), but it is assumed by the appellants that they were voluntary bankrupts.

It seems to be the settled law of this State that our courts will not recognize or enforce a right or title acquired under foreign •bankrupt law or foreign bankrupt proceedings, so far as affects property within their jurisdiction, or demands against residents of the State.^[3] The distinction between cases of voluntary and involuntary bankruptcy does not seem to have been considered important; perhaps because in either case the transfer of title is by •operation of law or by adjudication of the courts. We feel bound by the rule laid down in the various cases, and if any such distinction as that relied upon by the appellants is to be made, it should come from the court of last resort, upon whose authority it will be final. The judgment should be affirmed.

Bbadt and Daniels, JJ., concurred.

Judgment affirmed.

* See Mosselman v. Caen, 34 Barb., 66 ; Abraham v. Plestoro, 3 Wend., 538 ; Johnson v. Hunt, 23 id., 87; Holmes v. Remsen, 20 John., 229 ; Willitts v. Waite, 25 N. Y., 577 ; Hoyt v. Thompson, 19 id., 224, 225 ; 2 Kent’s Com., 406, 407; Hoyt v. Thompson, 1 Seld., 320; Harrison v. Sterry, 5 Cranch, 298 ; Ogden v. Saunders, 12 Wheat., 213 .

Footnotes

* Code, sec. 148.