Barnes v. Matteson

5 Barb. 375 | N.Y. Sup. Ct. | 1849

By the Court, Gridley, J.

The plaintiff claimed to recover in his declaration, for use and occupation and on several other grounds of indebtedness. The plea set forth the proceedings of the plaintiff in bankruptcy, with a decree by which all his property, including the promises in the declaration mentioned, was vested in Thomas Beekman, the assignee appointed by the court. The plaintiff replied, that after the said decree the said assignee, for a valuable consideration paid to him by the plaintiff, duly sold, transferred and assigned to the said plaintiff all the right, title and interest of the said assignee to the promises and causes of action in the declaration mentioned. To this replication the defendant rejoined several matters, and to the rejoinder the plaintiff demurred, and assigned many special grounds of demurrer.

The defendant’s counsel now insists that the replication of the plaintiff is bad in substance, and that the judgment, for that reason, must pass against him, on the ground that he committed the first fault in pleading. The objection to the replication, on which the defendant relies, is the absence of any averment that the sale and transfer of the demands which constitute the subject matter of the suit, by the assignee to the plaintiff, were made in pursuance of an order of the court. The assignment is founded on the provisions of the third section of the bankrupt act. In that section it is enacted that “ the assignee so appointed shall be vested with all the right, title, power and authority to sell, manage and dispose of the same, [the property of the bankrupt,] and to sue for, and defend the same, subject to the order and direction of the said court, as fully and to all intents and purposes as the same were vested in and might be exercised by the bankrupt before or at the time of his bankruptcy.” The proposition for which the defendant contends is, that the pleader should have set out the order of the court authorizing the sale and transfer, and then have stated, by an appropriate averment, such facts as would show the sale and transfer to have been made in pursuance of such order. I cannot think such an averment necessary. The assignee was vested with full power “ to sell and dispose of” the demands which constitute the cause of action in the suit; and the only restriction imposed upon him is that in so doing he, as an officer of the court, shall be subject to the orders of the court. Now the consequence of a violation of this provision would be that any person, whose rights should be affected thereby, might have his appropriate relief, by setting aside the sale or otherwise. But there is nothing in the act to show that any special order is to be made regulating and directing such sales, either generally or in each particular case. It does not appear that any such order has been made in this case, and much less that, if made, it has been violated. If any such fact exists, it must at least be pleaded. The general averment of the sale and transfer is good on a general demurrer.

This brings us to the consideration of the rejoinder. It has hardly been contended that it could be supported. It certainly cannot on a special demurrer. Its defects in form are numerous. It seeks to raise an issue, whether the assignment is valid in law, without setting forth the facts on which its invalidity depends. This is a good defence if well pleaded. Again ; it avers what is intended to be a fraudulent concealment of certain debts due to the plaintiff, to show the discharge void under the fourth section of the bankrupt act. This is also a good defence, if well pleaded. But the facts are not so pleaded as to amount to a fraud under that section. The pleading is therefore double. Another defect in form is an omission of any statement of the time and place, showing when and where the several acts set up in the pleading took place.

The demurrer must therefore be allowed, and the defendant may amend on payment of costs.