29 A.D. 568 | N.Y. App. Div. | 1898
Lead Opinion
This action was brought in the month of November, 1895. The parties to the original action were the executors of John Elliott, the members of the firm of Rigg'S & Co., the administrator of the estate of Charles A. de Chambrun, and the administratrix of the estate of Thomas M. "Wheeler. The complaint alleged that there had been assigned to the plaintiff by Thomas M. Wheeler a mortgage to-secure the sum of $10,875, which the plaintiff held as trustee for the benefit of John Elliott in a certain sum, and for the benefit of Riggs & Co. in another sum, and with the understanding that upon the collection of the mortgage or upon the payment of those sums he would reassign the mortgage to Wheeler. The plaintiff alleged in his complaint that de Chambrun had agreed to pay the plaintiff $2,500' for certain services, and de Chambrun and Wheeler had agreed to-pay him $1,956 for certain other services, and that he was entitled to-a lien upon the money collected upon said mortgage, after" the payments of "the amounts due to Elliott and Riggs & Co., to secure the payment of the two sums owing to him from de Chambrun. He alleged that the amount of the mortgage had been paid to him, and he brought the action to obtain a judgment, fixing the amounts owing to Riggs & Co. and to Elliot and to Wheeler as the owner of the mortgage, and asking that he should be adjudged to have a lien upon the remainder of the proceeds of the mortgage to secure the payment to him of the saicí sums of $2,500 and $1,956; but it was conceded in the complaint that such lien was subject to the prior lien of Riggs & Co. and Elliott, and the relief asked was that it be so declared. It is important that this fact should be borne in mind because the plaintiff did not bring the original action to assert any claim upon the proceeds of the mortgage which belonged to Elliott or to Riggs & Co., but he expressly stated that whatever claim he might have had to. a remainder of the proceeds of the mortgage, was subject to the prior rights of Elliott and of Riggs & Co. After the action had been brought and was at issue, and on the 14th of December, 1898, it was settled by contract by which the plaintiff agreed to pay the sum of $8,077.96 on the 15th óf January, 1897, in full settlement of the amounts claimed by Elliott and Riggs & Co.; to pay to de Chambrun the sum of $1,164.40, and to the administratrix of Wheeler the sum of $1,170.20, and it was agreed that
It will be noticed that in the original complaint the plaintiff claimed no lien upon that portion of the mortgage which was to be paid to Elliott or to Riggs & Co., but expressly asked that any claim which he had should be subject to their prior rights. Therefore, as against them, he had no right to insist that whatever sum was coming to them out of the mortgage should be made subject to any debt which they owed him; nor does he in the supplemental complaint'
The complaint is sought to be sustained because the plaintiff asks for an adjudication as to the rights of several persons to a fund which is in his hands. But there is no fund in his hands, as appears by the supplemental complaint. The money which constituted the fund has been paid to him and he has by express contract agreed how it shall be divided among those persons who are entitled to it, and as the result of that agreement there is no longer a fund, but the plaintiff is bound by contract to pay a fixed amount to each of several persons. We have already held in this case that the remedy of these several defendants was only by an action at law, upon the stipulation which appears in this supplemental complaint, to recover the amount which the plaintiff, by that stipulation, agreed to pay to them. (Harris v. Elliott, 19 App. Div. 60.) The agreement of the plaintiff to pay is made separately, with separate defendants, and no joint action will lie by all (Hees v. Nellis, 1 T. & C. 118), but each must sue separately. In that action Harris could set up, as against the claim of each plaintiff, the counterclaim which he has alleged in tliis complaint. This counterclaim would constitute a separate defense to each defendant, in which no other defendant would be at all interested. The test to determine whether two parties can be joined as defendants is, whether they have one connected interest centering in the point in issue, or one common point of litigation. (Mahler v. Schmidt, 43 Hun, 512; Corcoran v. Mannering, 10 App. Div. 516.) It is quite evident here that there is no common point of litigation and no connected interest. The plaintiff’s claim against each of these defendants is entirely separate from the claim against any other, and he makes no assertion or allegation as to Riggs & Co., or Elliott, that he has any lien either upon the fund
Judgment affirmed, with costs.
Patterson and O'Brien, JJ., concurred; Ingraham, J., dissented.
Dissenting Opinion
This action, as originally commenced, was in the nature of a bill of interpleader, by which the plaintiff sought to have the court determine to whom a fund in his hands belonged. The defendants answered the complaint in that action, and subsequently the plaintiff asked leave to serve a supplemental complaint. This supplemental complaint alleged facts that happened subsequent to the commencement of the action, and alleged an agreement in writing between the parties to the action subsequent to the joinder of issue, and the acts of the plaintiff and the defendants in pursuance of such stipulation or agreement. Ho cause of action different from that alleged in the complaint was sought to be injected into the action. The action, after the service of the supplemental complaint, was still to determine to whom this fund in the hands of the plaintiff belonged, and the cause of action was still the same. Hpon the facts alleged in the complaint, the plaintiff requested adjudgment which would make a different disposition of the fund than that justified by the facts alleged in the original complaint; but the cause of action still was for an adjudication as to the ownership of a fund which by the original complaint, not by the supplemental complaint, was alleged to be in the hands of the plaintiff. Subsequent to the service of this supplemental complaint the defendants demurred to the amended and supplemental complaint “ on the ground that several causes of action have been improperly united therein.” There was no “ amended and supplemental complaint ” served. There was an original complaint and a supplemental complaint. If this demurrer was sought to apply to the original complaint as supplemented by the facts alleged in the supplemental complaint it should have been so stated. . The right to demur to the original complaint had been lost
I think, therefore, that the judgment appealed from should be reversed and the demurrer overruled as unauthorized, with leave to the defendants to answer the supplemental complaint upon payment of costs in the court below and in this court.
Judgment affirmed, with costs.