35 A.D. 421 | N.Y. App. Div. | 1898
The attachment here was sought to be vacated solely upon the ground that the complaint and affidavit failed to set forth a cause of action against the defendants named in the warrant. The rule is,
The claim is that the action is for moneys had and received by the defendants Rachel Moore, John 0. Shaw and Archibald T. Moore individully, to the plaintiff’s use. The moneys are alleged to have been paid by the plaintiff under a contract for the sale to it of certain shares of stock belonging to the estate of George Moore, deceased, Rachel Moore and John 0. Shaw being the latter’s executrix and executor. The sale was not made directly to the plaintiff. The averment is, that the plaintiff had no power under either its charter or the statutes under which it was incorporated to purchase these shares, and that as a cover for the real transaction the contract of sale was made to “ a man of straw ” (one Clegg); that the latter assigned the contract to the plaintiff’s directors; that Shaw, who was one of these directors, signed a demand note for $10,000, payable to the order of the plaintiff; that this note was guaranteed by all the other directors; that the plaintiff took it as thus guaranteed, secured by the pledge of the contract of sale; that the plaintiff paid the amount named in the note, to wit, $10,000, to the defendants Rachel Moore and Shaw, as executrix and executor of George Moore, and that the form of the loan upon the security of the contract with Clegg was adopted, because the plaintiff, while not authorized to purchase stock, was authorized to lend money. The complaint appears to have been formulated upon two theories, first, that the contract was ultra vires, and, second, that it was procured by fraudulent representations on the part of Shaw, made with the knowledge and by the authority of Rachel and Archibald Moore. The case, upon the latter head, may be summarily disposed of. The plaintiff avers that, in consequence of its discovery of the fraud which had been practiced upon it, the defendants Rachel Moore and Shaw were notified upon the 30th day of September, 1894, that it rescinded the contract. With full knowledge of the fraud, thus pleaded, the plaintiff avers that upon the seventh day of the following December it paid the defendant Rachel Moore, as executrix, the
Upon the other theory, however, we think a cause of action may be found, hidden away and obscured in a vast amount of irrevelant matter, which reads like a bill in equity rather than a complaint at law. There is, at all events, a sufficient averment that the contract of sale ivas, as a matter of fact, made; that such contract was ultra hires ; that it remained executory throughout; and that the plaintiff paid money under it. Even in this aspect of the complaint, the document was undoubtedly open to attack. The directors, other than Shaw, were not proper parties, and there were many objectionable averments. The affidavits show, however, that the action is now at issue as to each of the defendants; and consequently all grounds of demurrer, save that the court is without jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action, have been waived. Notwithstanding many informalities and the presence of extraneous averments, there certainly seems to be enough in this complaint to make out a cause of action for the restoration of the moneys paid under the executory ultn'a vvres contract.
The .defendants contend that, even if this be so, the action will not lie against them individually. It is, however, averred in the complaint that both the preliminary negotiations and the final arrangement were between the plaintiff and Rachel Moore, Archi
It follows that there are averments sufficient if proved to charge the defendants individually for the moneys which they have received under this void contract. When the facts are fully presented upon the trial it may turn out that Archibald Moore is only liable for the moneys traced into his hands. It is conceded that the effect of the averments as to him is that he received these moneys without consideration. That brings him within the general scope of the action for money had and received. Even if the averments here were sufficiently clear to absolve him from a recovery with respect to the payments with which he was not directly connected, the attachment should still be sustained even as against him. His remedy was to move, not for an absolute discharge of the warrant, but for a reduction of the amount for which it was issued. (Sulzbacher v. J. Cawthra & Co. [Ltd.], 14 Misc. Rep. 545; affirmed upon the opinion of Daly Ch. J., 148 N. Y. 755.) The same observation applies to each of the other defendants. As the papers, then, by no means clearly show that the plaintiff must ultimately fail in its action, we feel bound to sustain the attachment, notwithstanding the loose and inartistic manner in which these facts have been placed before fire court.
The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements of the appeal.
Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, J«L, concurred.
Order affirmed, with ten dollars costs and disbursements.