6 N.Y.S. 571 | N.Y. Sup. Ct. | 1889
Opon an examination of the questions presented upon this motion, I am inclined to adopt the suggestion made upon the argument that that portion of the motion which seeks to strike out certain portions of the complaint as irrelevant and redundant should be denied, and that portion of the motion which seeks to make the allegations in the complaint more definite and certain should be granted. The reason for this latter view is apparent when we consider that, as the complaint is now drawn, it will be difficult to determine upon which one of two theories the complainants rely. This action, like many similar to it, recently brought, seeks to recover from preferred creditors, who have been paid their claims under an assignment, the amount so paid them after the assignment itself has been set aside as fraudulent and void. One ground relied upon is that creditors, though their claims are perfectly just, are liable to refund, in case the assignment is afterwards set aside, tho.ugh such payments were made before plaintiff made any attack upon the assignment. A second and different theory is that a payment made and received, after a creditor has actually begun suit, may be recalled by that particular creditor in ease he succeeds in the suit. The complaint, therefore, should be sufficiently definite, so that from the reading thereof it can be made manifest upon which theory the plaintiff relies. The allegation that the defendants knew the assignment to have been fraudulent is too indefinite. Without, therefore, commenting on each allegation in the complaint to which objection has been made, it seems proper, in view of the importance and novelty of the legal questions here involved, that all the facts showing the creditors’ right to recover should be definitely alleged. The motion, therefore, to the extent indicated, is granted.
