Barclay v. Quicksilver Mining Co.

| N.Y. Sup. Ct. | Jul 15, 1872

By the Court—Gilbert, J.

The first ground of demurrer, namely, that the plaintiff has no legal capacity to sue, cannot be sustained, unless it appears on the face of the complaint that he has not such capacity. If the complaint merely fails to show the facts which confer the capacity to sue, the objection must be taken by answer. (Phenix Bk. v. Donnell, 40 N. Y. R., 412.)

In determining this question, we must assume that the plaintiff is vested with the title to the property which is the subject of the action, for the complaint contains an averment to that effect, and the demurrer admits the truth thereof. This admission, however, must be qualified by other facts appearing in the complaint, namely, that the plaintiff’s title is that of a sequestrator only, which is substantially that of an assignee of the Pennsylvania corporation, and that he is seeking to avoid a transfer made by his assignor, on the ground that it was fraudulent as to the creditors of such assignor. He stands in the shoes of the Pennsylvania corporation, and represents its creditors. As such assignee, can he maintain such a suit ? The question is merely technical. There can be no doubt that the creditors, whom the plaintiff represents, might have brought the suit, and it is not very material to the merits whether it is brought in their names or that of the plaintiff. The rule of law on this subject is that, if allowed by the lex fori, the assignee may sue in his own name, although forbidden by the foreign law. (Story Conff of Laws, § 357.) It does not appear from the complaint whether the laws of Pennsylvania authorize such a suit, although such is the fact. It is enough, however, that the laws of this State do authorize it. (Laws 1858, chap. 314, p. 506.)

It is urged, however, that being a foreign sequestrator he cannot sue, although he is vested with the title to the property. The general rule certainly is, that a plaintiff, who is a foreigner, is not thereby incapacitated from bringing a suit against a defendant who is a citizen. But it is claimed that all the rights and powers of the plaintiff being derived from the statutes of Pennsylvania, they cannot be • exercised in this State, because the laws of a State have no extra territorial force, and he is not within that principle of comity which entitles him to recognition as a suitor in our courts. The learned counsel for the defendant has referred us to numerous authorities in support of this position. They are eases relating to foreign executors, administrators, guardians, receivers in ordinary creditors’ suits and the like. All of them proceed upon the principle that the rights and powers with which such persons have been invested in the foreign State cease when they pass beyond the limits thereof. They do not touch the question involved in the assertion of rights ■ pertaining to actual ownership acquired under foreign laws. It cannot be questioned that devisees or legatees may sue here to recover property devised or bequeathed to them by a person domiciled in a foreign State, if such devises and bequests are valid according to the law of this State. So the assignee of a foreign executor may sue here. Foreign assignees in bankruptcy have the same right, subject to rights acquired by our citizens, under conflicting dispositions made by the bankrupt. And, in the case of receivers or trustees of foreign corporations, we think the rule is pretty well settled that they may sue to recover property situated in this State, subject, however, to the qualification that the foreign law will not bo recognized to the extent of divesting the titles of our own citizens fairly acquired. The case before us is one between the plaintiff, representing the State of Pennsylvania as a creditor of the corporation created by the laws of that State, and that corporation itself, and the defendant, to whom the Pennsylvania corporation has transferred its property by voluntary gift, without any consideration, and for the purpose of defrauding the State of Pennsylvania. There does not appear to be any other purchaser or creditor, or any citizen of this State, besides the defendant, who has any interest in the question. We cannot withhold the application of the rule of comity in such a case. This State has not yet become a sanctuary for the protection of property in the hands of a transferee, who has acquired it by a fraudulent contrivance like that alleged in the complaint, although the act of transfer was made in a foreign State, and the property is pursued by a person in whom the title in such property is vested under the laws thereof. (See on this subject Runk v. St. John, 29 Barb., 585" court="N.Y. Sup. Ct." date_filed="1859-05-02" href="https://app.midpage.ai/document/runk-v-st-john-5459670?utm_source=webapp" opinion_id="5459670">29 Barb., 585; Hoyt v. Thompson, 1 Seld., 320; S. C., 19 N. Y. R., 207; Willitts v. Waite, 25 id., 577; Petersen v. The Chemical Bank, 32 id., 21.)

Our opinion, therefore, is that the complaint does not show any lack of capacity to sue. We also think the second ground of demurrer, namely, that the complaint does not state facts sufficient to constitute a cause of action, is untenable. The general averment that the plaintiff is owner is sufficient, without setting forth the particular statutes whereby he became owner. If the defendant desired more information respecting the laws of Pennsylvania which conferred the ownership, his remedy was by motion to make the complaint more definite and certain. (People v. Ryder, 12 N.Y., 433" court="NY" date_filed="1855-06-05" href="https://app.midpage.ai/document/the-people-ex-rel-crane-v--ryder-3598439?utm_source=webapp" opinion_id="3598439">12 N. Y., 433; Same v. The Mayor, 28 Barb., 240" court="N.Y. Sup. Ct." date_filed="1858-10-28" href="https://app.midpage.ai/document/people-v-mayor-of-new-york-5459514?utm_source=webapp" opinion_id="5459514">28 Barb., 240.) The substance of the averment is that, by the laws of Pennsylvania, he is the owner, &c. Foreign laws are facts to be proved, like any other facts (Seymour v. Sturgess, 26 N.Y., 134" court="NY" date_filed="1862-12-05" href="https://app.midpage.ai/document/seymour-v--sturgess-3591594?utm_source=webapp" opinion_id="3591594">26 N. Y., 134), and it is sufficient to make an averment corresponding to the legal effect of them, without setting them forth at length.

If the property was fraudulently transferred, as alleged in the complaint, the plaintiff, as assignee of the transferrer, has a right to recover it, by virtue of the statute of 1858, before cited, provided he has capacity to sue at all. The rules of courts of equity relative to suits of creditors, referred to by the learned counsel for the defendant, have not, therefore, any .application to the case.

The judgment must he affirmed with costs, with leave to the defendant to answer on payment of costs.