34 N.Y.S. 300 | N.Y. Sup. Ct. | 1895
The fund which the plaintiff holds as trustee, and for the distribution of which this action is brought, did not * arise out of the agreement executed June 16, 1892, but from the rents of real estate received before the will of Francis W. Lasak was set aside. Undoubtedly, any of the defendants may allege that he or she is entitled to all or some share of the apparent interest of a codefendant in the fund by reason of having acquired title thereto or a lien thereon by agreement. But that is not what the appellants seek to do. They set up in their answer that by a contract dated June Í6, 1892, Margaret S. Ives, a codefendant, agreed to pay them $180,000, in consideration of their having assigned to her their interest in the estate. This is an independent cause of action, having no relation to the fund which the plaintiff holds in its hands, Had the fund in the suit arisen out of the contract of June 16th, a different question would have been presented. Section 521 ■ of the Code of Civil Procedure does not authorize defendants to litigate, as between themselves, independent cross demands, not connected with the cause of action set forth in the complaint. Smith v. Hilton, 50 Hun, 236, 2 N. Y. Supp. 820.
The order should be affirmed, with $10 costs and disbursements. All concur.