104 N.Y.S. 33 | N.Y. App. Div. | 1907
The demurrer for insufficiency and lack of capacity to sue is-based upon the failure to definitely allege where or by what officer or court the order appointing the plaintiff as trustee in bankruptcy of the defendant Wheeler was made or where and when it was entered. The allegation is that h.e was “ duly appointed the trustee * * * by an order duly made on the 16tli day of- March, 1905.” It may be conceded that, under the. authorities the allegation of a mere conclusion of law on which no issue could be raised is insufficient. (Gillet v. Fairchild, 1 Den. 80; White v. Low, 7 Barb, 204; Bangs v. McIntosh, 23 id. 591, 598; White v. Joy, 13 N. Y. 83, 86 ; Secor v. Pendleton, 47 Hun, 281.)
But the lack in definiteness for which the complaint is criticised in this respect is made up by fair and necessary inferences to be drawn from other allegations therein. It is alleged that the petition in bankruptcy was filed in the office of the clerk of the District Court of the ¡Northern District of Hew York and that Wheeler was by that court duly adjudged a bankrupt. The court may take judicial notice that there is but one clerk’s office in that district for that court. It is not like the Supreme Court of the State, which has as many clerk’s offices of the court as there are counties in tlie State. The Bankruptcy Act (approved July 1, 1898) provides in section 11 (30 U. S. Stat. at Large, 557) that the creditors of a bankrupt estate shall at their first meeting after the adjudication in bankruptcy appoint one trustee or three trustees of such estate, and if the creditors do not appoint a trustee or trustees the court shall do so. ¡Rule XIII of the General Orders in Bankruptcy (adopted by United States Supreme Court October, 1898) provides that the appointment of a trustee by the creditors shall be subject tó be approved or disapproved by the referee1 or by the judge. Under
The demurrer for improperly joining causes of action is founded upon the argument that a cause of action to recover property or the value thereof improperly transferred within four months before the filing of the petition in bankruptcy has been joined with one for fraud and one for conspiracy.
While isolated sentences in the complaint would be appropriate to an action for damages for fraud or for a conspiracy, yet it is apparent that the effort of the pleader has been simply, under the peculiar facts •of this case, to state facts which, if proven, will be sufficient to set aside the alleged unlawful transfer and to recover from the, defendants the property transferred counter to the provisions of the Bankruptcy Act or the value thereof. That being our view of this complaint, there has been no improper joinder of causes of action, as they .all arise out of the same .transaction or transactions connected with the subject of the action, are consistent with each other and affect all the parties to the action, and do Hot require different places of trial.
Regarding the action, as we do, as one simply for the purpose of setting aside the unlawful transfer of the bankrupt’s property and to recover the same, or the value thereof, for the benefit of his estate, it is within the jurisdiction of this court. (Jones v. Schermerhorn, 53 App. Div. 494; Bankr. Act [30 U. S. Stat. at Large, 564], § 67, subd. e., as amd. by 32 id. 800, § 16; Cook v. Whipple, 55 N. Y. 150.)
The interlocutory judgment should be affirmed, with costs, with usual leave to defendants to answer on payment of costs of demurrer and of this appeal. .
All concurred, except Cochrane,' J., dissenting.
Interlocutory judgment affirmed, with costs, with usual leave to defendant to answer on payment of costs of demurrer and of this appeal.