34 N.Y.S. 541 | N.Y. Sup. Ct. | 1895
It cannot he doubted that the complaint contains in a single statement three separate causes of action, namely: First, to set aside a mortgage and bill of sale alleged to have been executed by the American Gear & Spring Company in contemplation of insolvency, and with intent to hinder, defraud, and delay creditors; second, to set aside a judgment alleged to have been obtained collusively; third, to enforce the liability of three of the defendants for their failure, as directors of said company, to file an annual report in January, 1894. The complaint prays, also, for a sequestration of the property of the gear and spring company and division among its-creditors. There are six defendants,—the American Gear & Spring Company, the Third National Bank of Buffalo, Robert Keating, Lang-ford S. Keating, Algar M. Whéeler, and Edward P. Hollister. The complaint alleges the recovery of a judgment by the plaintiff’s assignor against the gear and spring company, the issue of an execu
It is evident from what has been stated that the cause of action against the Third National Bank does not affect any of the other defendants except the gear and spring company, unless the defendants Wheeler, Hollister, and Langford S. Keating are proper parties defendant because they procured the transfer of the property to the bank; and this in no event affects the defendant Robert Keating. It is equally evident that the second cause of action affects only the gear and spring company and the defendant Robert Keating, unless the allegation that the bank and Langford 8. Keating colluded with the other defendants just named to permit the judgment to be obtained makes their joinder proper. So the third cause of action affects only the defendants Wheeler, Hollister, and Langford S. Keating. The defendants Hollister, Wheeler, and Langford 8. Keating have separately demurred to the complaint upon the ground that
It is provided by section 484 of the Code of Civil Procedure that various causes of action may be united as classified in that secuon, but with the restriction that it “must appear upon the face of the complaint that all the causes of action so united """ * * affect all the parties to the action.” The limitation which has been quoted is aimed against what was known in the chancery practice as multifariousness, and is but a restatement of one of the earliest rules of the court of chancery. Story, Eq. Pl. (9th Ed.) § 271. The ru!° is designed, not only to avoid the hardship of compelling a defendant to litigate a question in which he has no interest, but also to avoid confusion in the pleadings and in the decrees of the court. In order to determine whether the demurrers should have been- sustained, the first inquiry is whether the allegations of the complaint to the effect that the appellants procured and were concerned in the fraudulent transfer to the bank, and colluded with Robert Keating to permit his judgment to be obtained, state a cause of action against them with respect to those acts. It appears from the complaint that the appellants, while not in possession of any of the assets of the gear and spring company, were instruments of the alleged illegal acts assailed by the plaintiff, and it follows, therefore, that they are proper parties so far as those causes of action are concerned. It has long been a rule of equity practice that one who participates in a fraudulent act, even though he be concerned only as agent, may be made a defendant in a bill to obtain relief from that act for the purpose of charging him with costs. Story, Eq. Pl. (9th Ed.) § 232; Brady v. McCosker, 1 N. Y. 214. The complaint in this action contains a general prayer for costs, which must be construed as applying to all the defendants, and is sufficient, therefore, to avoid the objection that the appellants are not proper parties defendant to the first ánd second causes of action. It follows, therefore, that the complaint as to these defendants is not objectionable upon the ground that it unites causes of action which do not all affect the appellants. It is not necessary to discuss or decide here the question whether this objection might have been more successfully taken by some of the other defendants who did not demur.
It remains to be determined whether the complaint is demurrable on account of the joinder of the third cause of action with the other two. It has not been questioned by the counsel for the appellants that the first and second causes of action are of such a nature that they may be united in the same complaint, and no such objection could successfully be made. The third cause of action—for the enforcement of the statutory liability of the appellants as directors of the gear and spring company—cannot properly be joined with the other two causes of action, consistently with any reasonable construction of section 484 of the Code Of Civil Procedure. By section 1790 of the Code it is, however, provided that “where the action is brought by a creditor of a corporation, and the stockholders, directors, trustees or other officers, or any of them, are made liable by law, in any event or contingency, for the payment of his debt, the persons so made liable
Our conclusion, therefore, is that all the demurrers were properly overruled, and that the judgment appealed from should be affirmed, with costs, with leave to defendants to answer within 20 days after entry of this judgment, upon payment of the costs of the demurrer and of this appeal.
WARD, J., concurs. BRADLEY, J., concurs in the result.