215 A.D. 299 | N.Y. App. Div. | 1926
The complaint is framed so that it is impossible to ascertain from reading it what precise questions were litigated before the referee in bankruptcy in Delaware; who the objecting parties were, their relation, if any, to the plaintiffs in this action, or what was the exact decision of the referee in bankruptcy. Nor does the complaint state who the parties were who appealed from the referee’s decision to the United States District Court, nor is the decree of that court in favor of the defendant Gavin before us. The appellant asserts in his points that one of the plaintiffs in this action was a party to the proceedings before the referee, and that he was the petitioner or one of the petitioners before the United States District Court. But there is nothing on the face of the complaint, in the case at bar, to show these things, or which would enable the court at Special Term, or this court, to determine the interesting questions as to the effect of these adjudications in Delaware or as to the jurisdiction of the State court to entertain this action. On a motion of this kind under rule 106 of the Rules of Civil Practice, every intendment and fair inference is in favor of the pleading. If the defendant, appellant, desires to have these questions of jurisdiction and res adjudícala decided on a motion such as this in advance of the trial, at which such matters might be presented (Civ. Prac. Act, § 279), they can only be decided with the record of the proceedings before the referee in bankruptcy, his decision, the petition and proceedings upon the appeal to the United States District Court and the decree of that court before the court at Special Term. We, therefore, affirm the order of the Special Term denying the defendant’s motion for judgment on the pleadings, without costs, without passing upon the question of
Rich, Manning, Kapper and Lazansky, JJ., concur.
Order denying defendant, appellant’s motion for judgment on the pleadings affirmed, without costs.
