175 F. 629 | S.D.N.Y. | 1909
The demurrers in this cause have been so ably argued, both orally and on the briefs, that counsel will need little more than a statement of my conclusions.
The hill states four causes of action, which may be prosecuted in suits in this court ancillary to the receivership, without regard to the citizenship of the parties or the amount involved. But I think, in accordance with the opinion of Judge Lowell in Whelan v. Enterprise Transportation Co. (C. C.) 164 Fed. 95, that the difference of jurisdiction at law and in equity must still be observed. The causes of action are independent and unrelated, and some of them do not affect all the demurring defendants. The bill asks for no discovery; no accounting is necessary for ascertaining the amounts claimed; no fraud is alleged, except on the part of Brockway as to the salary which he is charged with receiving for the purpose of paying it over to the late president of the association. The allegations of misconduct on the part of the other demurring defendants are rather vague. 1 think the complainants have a plain, adequate, and complete remedy at law, a question which was not considered in the case of Warner v. Pennoyer,
It is unnecessary to pass upon the effect of the statutes of limitation. A bill which shows on its face great laches and a plainly stale claim may be dismissed on demurrer. Speidel v. Henrici, 120 U. S. 377, 7 Sup. Ct. 610, 30 L. Ed. 718. When, however, the statute of limitations is relied on, it should, generally speaking, be pleaded as a defense, because the court can better determine on the trial whether the reasons given why the defendant should not have the benefit of it are good. /
The demurrers are sustained, with costs. Submit order on notice.
