Paine v. Smith — 9 N.Y. Super. Ct. 298

Majority

p. 298

Paine and others v. Smith, Administrator, &c., of Hunt, dec.

(Before Oaklety, C. J., Campbell and Emmet, J.J.)

June 8;

July 2.

Headnote

When no other ground of demurrer is meant to be relied on than the insufficiency in law of the matters set forth in the complaint to maintain the action, it is specified' as distinctly as can be required, in the words of the Code, “ That the complaint does not state facts sufficient to constitute a cause of action.”

When an order for the resale of mortgaged premises is made in a foreclosure suit on account of A B, as the first purchaser, and requiring him to pay any difference in price, no action can be maintained on the order against C D, on the ground that he was the real purchaser. The order concludes the owners of the fee.

p. 299

Appeal from an. order at special term, allowing a demurrer to the complaint;

The complaint is in the following words:

John Paine, James Phalen, and John M. Bixby, plaintiffs, complain that Adon Smith, administrator of the goods and chattels, &c., of Jonathan Hunt, late of New York, deceased, defendant, refuses to pay unto the plaintiffs the sum of two thousand two hundred and forty-two dollars and ninety-two cents, with interest from the 16th day of October, 1846, due and owing unto said plaintiffs by said Jonathan Hunt, in his lifetime, and by Adon Smith, as administrator, &c., in manner following:

For that in his lifetime, to wit, on the 9th day of May, 1846, Jonathan Hunt purchased, at a sale made under and in pursuance of a decretal order or decree in a certain suit then pending in Chancery, before the Vice-Chancellor, entitled, “John J. Palmer, Special Receiver, v. Isaac M. Woolley and Matilda D. his wife, and others,” certain portion of the premises mentioned and described in said decretal order or decree, bidding for the same by his agent, Jeremiah Lathrop, and causing the said premises to be struck off to one Adon Smith, and that said Jonathan Hunt, after paying, through his agent, Jeremiah Lathrop, the ten per cent, and auctioneer’s fees, according to terms of said sale, then and there failed to comply with said terms of sale and complete his said purchase, but forfeited his said ten per cent., whereupon a motion was made in the above mentioned cause or suit so pending for a re-sale, which was granted, and amongst other things ordered that on said re-sale the surplus of said re-sale, after paying the amount bid on said re-sale, interest, cost and charges, be paid over to said Jeremiah Lathrop, and that the deficit, if any, be paid by said Jeremiah Lathrop; and that at said re-sale, according to the Master’s report thereon made the 8th day of October, 1846, and confirmed the 16th day of said month, there was a deficiency upon said re-sale of $2,242.92^, which is still due and owing to the plaintiffs, they then being the owners in fee of the said property, after satisfying liens thereon. Whereupon the said plaintiffs demand judgment against the said defendant, as administrator of the goods, chattels, &c., of Jonathan Hunt, deceased, for

p. 300

two thousand two hundred and forty-two dollars and ninety-two cents, with interest thereon from the sixteenth day of October, one thousand eight hundred and forty-six.

The demurrer stated no other ground of objection, than that the complaint “ did not state facts sufficient to constitute a cause of action.”

Hr. J. Campbell, by whom the case was heard at special term, ordered that the demurrer should be allowed and the complaint dismissed with costs, unless the plaintiffs should within 20 days amend their complaint and pay the costs of the demurrer—and it was from this order that the appeal was taken.

A. Clason for the plaintiff's and appellants.

I. The demurrer is bad under the Code, because it specifies no defect. (How, Practice R. vii. 278 ; do. vi. 361.)

II. The complaint is good upon demurrer. It states a contract with the court, to the benefit of which the plaintiffs are entitled; that one Lathrop, the ostensible contractor, was not the real'party in interest, and that the intestate is the real party in interest.

III. Before the Code, the present plaintiffs could have filed a bill to set in motion the former order.

W. M. Evarts for defendant.

I. The complaint shows no contract by defendant’s testator with the plaintiffs, for the purchase of any lands. (2 R. S. 135. § § 8, 9. Townsend v. Hubbard, 4 Hill, 351 ; McWharter v. McMahon, 10 Paige, 393; Coles v. Bowne, ib. 537.)

II. It shows no conveyance to him, nor offer to convey, nor any excuse for such omission.

IH. It shows the purchase to have been made by another person, to wit, Lathrop. . '

IT. It shows that the default of the purchaser at the Chancery sale was judicially disposed of in the suit, by the court having jurisdiction; and that the defendant’s testator was not held as purchaser by the court. This is an adjudication of the

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whole matter. (Strong v. Dollner, 2 Sandf. Sup. Ct. R. 444; Brown v. Frost, 10 Paige, 247.)

We are all of opinion that the order appealed from must be affirmed with costs.

The demurrer is not bad upon its face; for, when no other cause of demurrer is meant to be relied on than the insufficiency in law of the facts set forth in the complaint, to maintain the action, no other is necessary to be assigned, and it is properly assigned by following the words of the Code: “ That the complaint does not state facts sufficient to constitute a cause of action.” ' Section 145, in requiring the grounds of objection to the complaint to be distinctly specified, only means that the demurrer shall specify distinctly one or more of the six causes of demurrer, which are enumerated in § 144. So far as this court is concerned, this question must be considered as settled.

The facts set forth in the complaint are certainly not sufficient to entitle the plaintiffs to maintain the action. Passing over other objections," we cannot doubt that the plaintiffs are concluded, by the "order in the foreclosure suit, which required the deficit, that they now seek to recover, to be paid, not by the intestate, but by Jeremiah Lathrop. If it was then known to the plaintiffs that Hunt was the real purchaser, and Lathrop merely his agent—and they desired that Hunt should be personally liable for a deficiency on a re-sale, the order should in terms have required the payment to be made by him. The complaint does not allege that the plaintiffs were then ignorant of the fact that Hunt was the purchaser, and we have no right to presume that they were so.

It is not very probable that this complaint can be so amended as to enable the plaintiffs to maintain the action; but, in affirming, with costs, the order appealed from, the liberty of amending, within the usual time and upon the usual terms, will be continued to them.