Ellsworth v. Curtis

10 Paige Ch. 105 | New York Court of Chancery | 1843

The Chancellor.

The answer and disclaimer in this case are the whole bill; and if there is any allegation that the complainant is entitled to have answered, his proper course is to except to the answer for insufficiency. For the defendant cannot, by a disclaimer, deprive the complainant of the right of requiring a full answer from him, unless it is evident that the defendant ought not, after such disclaimer, to be continued a party to the suit. (Welf. Eq. Pl. 255. Glassington v. Thwaites, 2 Russ. Rep. 458.) In a recent case before Lord Cottenham, where the defendants, who attempted to disclaim, were charged with having by a false claim prevented the complainant from obtaining a fund, in the hands of trustees, without the aid of the court of chancery, which charge if proved would have rendered them liable for costs, his lordship seemed to think it a proper case for a motion to take the answer and disclaimer off the file. (Graham v. Coape, 3 My. & Cr. Rep. 642.) But that was a mere intimation at the close of the argument, and is not supported by the case of De Beauvoir v. Rhodes, which he afterwards referred to as having been decided by Sir John Leach. That was, a case of simple disclaimer, unaccompanied by an answer j according to the statement of it by Lord Cottenham. Exceptions cannot be filed to a simple disclaimer. The only remedy of the complainant who is entitled to an answer, in such a case, is to move to take the disclaimer off the files. But where the disclaimer is accompanied by an insufficient answer, the proper course appears to be to except to the answer, on the ground of insufficiency. Upon the merits also I am inclined to think that the complainant is wrong. The defendant’s disclaimer and answer appears to have been filed in good faith. He has answered, so far as he deemed it necessary to show that although, as president of the association, he once had an interest in this bond and mortgage, if the assignment to the trustee by his predecessor was invalid, such interest had been entirely divested by the subsequent appointment of a receiver, and the assignment of the whole effects of the association to that receiver for the benefit of its creditors and stockholders. And I do not find any thing in the complainant’s bill charging the defendant Talmadge with having violated his duty as president of the association, so as to entitle the complainant to a decree against him personally, even for costs. I doubt, therefore, whether the complainant can even except to this answer successfully. For if the association has no interest in this controversy, and ought not to have been made a party after all its rights and interests had been transferred to the receiver, it seems to follow that an officer of such association who has no personal interest in the controversy, and who is not charged with any fraud or misconduct, cannot be compelled to answer matters as to which he is a mere witness. (How v. Best, 5 Mad. Rep. 19.)

The motion to take the answer and disclaimer' off the files, is therefore denied, with $8 costs. But the complainant is at liberty to except to the answer, within the usual time after this decision, if he shall be advised to do so.