48 N.Y.S. 120 | N.Y. Sup. Ct. | 1897
The plaintiff brings this action to recover of the defendants one-third of the loss alleged to have been sustained by him in a stock speculation in which he, Albert 0. Cheney (defendants’ testator) and Warner Miller were equally interested. The defendants .have- demurred to the complaint on the ground that it does not state facts sufficient to constitute' a cause of action, and that there is a defect of parties defendant. The complaint charges that Cheney, Miller and the plaintiff entered into an agreement to buy, for the purpose of reselling at a profit, certain stock of the Chicago, Milwaukee & St. Paul Railroad Company; and that the profits, if any were realized, were to be equally divided between them; and that the losses, if any, were to be borne in the same manner; that in pursuance of the agreement purchases were made with money furnished or provided by the plaintiff and the stock thereafter sold and a loss sustained in the sum of nine thousand nine hundred and seventy-three dollars and seventy-two cents ($9,973.72), which was paid by plaintiff; that no part of this sum was paid by defendants’ testator, and by reason thereof the plaintiff] is entitled to recover against the defendants one-third of such loss, viz., three thousand three hundred and twenty-four dollars and fifty-seven cents ($3,324.57).
By demurring, the defendants admit not only every material fact stated in the complaint, but also every fact that can reasonably and fairly be implied therefrom; they admit the agreement, the| purchase and sale of the stock; that all of the money was provided by plaintiff; that a loss was sustained in the amount named; that; this loss has all been paid by plaintiff, and that, under the agreement, one-third was to be paid by their testator. They also admit that this constitutes the whole transaction, and that it is closed. Admitting all these facts, does the complaint state' a cause of action? The correct answer to be given to this inquiry depends upon the answer to be given to the further inquiry, and that is,
But it is suggested that Miller may make a similar claim against defendants, and, therefore, he ought to be -made a party to the action. There are two answers to this suggestion, (1) If the facts stated in the complaint are true he cannot make a valid claim; (2) If he does make such claim then the defendants’ remedy is by interpleader. Equity Gas Light Co. v. McKeige, 139 N. Y. 237.
The demurrer is, therefore, overruled, with leave to answer on payment of costs.
Demurrer overruled, with leave to answer on payment of costs.