6 Paige Ch. 570 | New York Court of Chancery | 1837
The demurrer in this cause is to some parts of the discovery which the bill seeks, but not to the relief. In a bill praying both discovery and relief, the discovery is incidental to the relief; and if a demurrer will not lie as to the relief, it will not, in general, lie as to the discovery. Hence, in a bill of that sort, a defendant cannot pass by the relief, leaving the plaintiff’s right to relief to depend upon the answer and the proofs, and demurr to the discovery; since, if the bill shows such a case as to entitle the plaintiff to relief, it follows that he is entitled to a discovery of all the matters necessary or important to substantiate the case upon which his right to relief depends. (2 Bro. C. C. 121. Mitfd. Pl. 4th. ed. 183.) But the discovery sought must be material, otherwise the defendant may still demur to it, as being an unimportant part of the bill; upon the same principle, that in answering he may omit to answer such allegations as can have no bearing or relevancy, without being subject to the imputation of putting in an insufficient answer. In general, however, if it can be supposed that a discovery may in any way be material to the plaintiff, the defendant will be compelled to make it, except where the situation of the defendant would render it improper; as where his disclosures might subject him to pains and penalties, or a forfeiture, or might hazard his title. (Mitfd. 191 to 194.)
In the present case, then, the question is, whether the parts of the bill demurred to, are at all material to the relief which it is possible the complainants may be entitled to at the hearing ; for, by not demurring to the relief, the defendants admit such possibility. The question, therefore, is not now upon the relief, which can only be determined at the hearing. And I am inclined to think that some part of the discovery demurred to, is not altogether immaterial and unimportant to the case made by the bill, and to the relief which it seeks. Thus, in relation to the Harpendinck will, and the possession and enjoyment of property under it, of which the bill prays a discovery, the complainants’ claim is mainly based upon it, as containing a trust in favor of their testator as one of the cestuis que trust. This, therefore, enters into and forms a material part of the case made by the hill, upon which the relief, in some measure, is to depend. The court cannot, upon this demurrer, undertake to settle the construction of the agreement contained in the call of 1789, and in the subsequent agreement of the 6th November, 1802, as set forth in the bill, nor say what effect they may have upon the claims under the alleged trusts of the will. If the defendants wished to present this question now, they should have demurred to the whole bill. As the pleadings stand, it can only be presented at the hearing upon the proofs. In the meantime, I am of opinion they must make the discovery which the bill in this respect seeks,
There are some parts of the discovery to which the demurrer is taken which would seem to be entirely unimportant. But this is a demurrer, which cannot be allowed in part and disallowed as to another part; and as I think it is not well taken in respect to the Harpendinck will, without examining it farther I must overrule it with costs.
The demurrer is well taken to most pf the discovery which it professes to cover, provided it
Neither does the question how the defendants became a corporation appear to be material in this case. The complainants’ testator contracted with the defendants as a corporation aggregate, and the bill is filed against them in that character. It does not therefore lie with the complainants to object that the defendants were not duly incorporated and are not now a subsisting incorporation, especially as no foundation for such an objection is laid in the bill. And the defendants who appear and answer as a corporation, and who admit that they contracted with Dr. Kuypers as a corporation, and under their corporate seal, cannot deny their own existence as a corporation.
There is a part of the discovery covered by the demurrer, however, to which the complainants have, a right to an answer, if they are entitled to any relief whatever upon the
A demurrer attempted to be sustained by an averment of fact in the answer is in the náture of a speaking demurrer, and is not aided by such averment. The defendants’ statement, in their answer, that they do not know and cannot set forth what was their revenue and income between 1791 and the time when the salary was raised, in 1795, cannot therefore be brought in aid of their demurrer to the discovery of their income during that period. On the contrary this is a full and perfect answer to that part of the discovry sought by the bill, and therefore overrules the demurrer.
As a demurrer bad in part is bad for the whole, it is not necessary that I should inquire as to the materiality of other parts of the discovery covered by this demurrer. It is sufficient to say that it for the most part depends upon the question, which I presume is the main point in the cause,
The decretal order appealed from is affirmed with costs, and the proceedings are to be remitted to the vice chancellor.