137 N.Y.S. 1032 | N.Y. App. Div. | 1912
Tbe trustee in bankruptcy of Wolf Sayetta alleges in separate counts two causes of action against the defendants, who were creditors of the bankrupt. The first is to recover the value of a stock of goods, which it is alleged the bankrupt, in furtherance of a conspiracy formed between him and one Taylor, who was acting as the agent of and representing the defendants, transferred with the advice and aid of defendants and in the presence and with the assistance of said Taylor in fraud of his creditors; and the second, is for that part of the proceeds of the sale of the goods which came into the possession of the defendants within four months of the bankruptcy, upon the ground that it constituted an unlawful preference under the Bankruptcy Act, in that the defendants knew that the bankrupt was then insolvent, and fraudulently intended to give them a preference, and did prefer them. In the first count it is further alleged that' the value of the goods was $5,500; that the bankrupt’s indebtedness to the defendants was the sum of $513.21; and that they received that amount from the proceeds of the sale of the goods, and through their said agent distributed the balance among some of the creditors of the bankrupt in part payment of their claims, and have refused after due demand to pay to the plaintiff the amount so received. The plaintiff demands judgment under the first count for the value of the stock of goods, and under the second count for the amount received by the defendants.
The amended answer put in issue most of the material allegations of the complaint, and pleaded as a first defense that the second cause of action did not arise out of the same transaction as the first, nor out of a transaction connected with the same subject, and that the first cause of action is not consistent with the second, and that, therefore, causes of action have been
It is alleged, as a defense to the first cause of action, that the defendants and said Taylor were jointly and severally liable on that cause of action, and that the plaintiff, as trustee in bankruptcy of said Sayetta, brought an action in the Municipal Court of the city of New York, borough of Brooklyn, fifth district, against said Taylor, and demanded judgment against him on the facts alleged in said first cause of action, and duly recovered judgment therein for the sum of seventy-three dollars and ninety cents, which was paid and duly satisfied of record by said Taylor, and that thereby the defendants have been discharged and released from liability on that cause of action. We are of opinion that the court erred in sustaining the demurrer to this defense, which was on the ground of insufficiency. It is well settled that while joint tort feasors are liable jointly and severally, if sued separately there can be but one satisfaction. (Woods v. Pangburn, 75 N. Y. 495; Barrett v. Third Avenue R. R. Co., 45 id. 628; Gross v. Pennsylvania, P. & B. R. R. Co., 65 Hun, 191.) The learned counsel for the respondent contends in this behalf that it is not sufficiently alleged that the recovery was on the same cause of action. This defense contains no denial of any of the allegations of the complaint, and it. expressly refers to the facts alleged in the complaint as thus admitted, to show that the causes of action were the same, which is sufficient without realleging them; and on demurrer to a separate defense the allegations Of the complaint to which
The defendants reallege these facts by reference as a defense to the second cause of action. In the second count of the complaint many of the facts alleged in the first count are realleged by reference. It is thus alleged that Taylor was the agent of the defendants at the time, but it is not alleged by reference or otherwise, that he conspired with Sayetta, or otherwise participated in the disposition of the stock of goods. It is merely alleged that Sayetta disposed of the goods with intent to defraud his creditors, with the knowledge and consent of the defendants, and out of the proceeds of the sale Taylor received the sum of $1,300, and within four months prior to the adjudication in bankruptcy, paid over $513.21 of the amount to the defendants in settlement of their claim against the bankrupt, who was known to the defendants to be insolvent, and that defendants received the money knowing that it was intended thereby to prefer them over other creditors, in that they knowingly received a greater proportion of their claim than the proportion received by other creditors, and that the return of. the money has been demanded and refused. These allegations do not establish that the recovery of the judgment against Taylor was on the same cause of action as that alleged in the second count of the complaint, for they utterly fail to show the basis of the recovery against him; but the defense now under consideration does reallege by reference the fact that the
The defendants pleaded as a further defense to the second cause of action that the “facts and matters stated in the-second cause of action are the same facts and matters stated in the first cause of action,” and that the plaintiff seeks to recover, in the first cause of action, the amount specified in the second cause of action. These averments constitute no defense. There is no denial of any material allegation of either cause of action alleged in the complaint, and no new matter is set up. The demurrer thereto was, therefore, properly sustained.
The defendants then pleaded, as a setoff to the complaint, the facts alleged as a defense to the first cause of action, namely, the recovery and satisfaction of the judgment against Taylor. I see no legal objection to pleading the facts thus pleaded as a defense, which we regard as a complete defense to both causes of action, as a setoff to both causes of action,
It follows that the interlocutory judgment in so far as it sustains the demurrer to the defense to the first and second causes of action and to the setoff should be reversed and the demurrer overruled, with leave to plaintiff to withdraw the demurrer on payment of costs of the demurrer and of the appeal and in all other respects it should be affirmed, without costs.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Judgment reversed to the extent stated in opinion, and in other- respects affirmed, without costs. Order to be settled on notice.