205 A.D. 286 | N.Y. App. Div. | 1923
The motions to dismiss were made separately by the above-mentioned defendants under rule 106 of the Rules of Civil Practice. The grounds set forth in the motion papers were that the complaint does not state facts sufficient to constitute a cause of action; that the plaintiff has an adequate remedy at law, and that there is another action pending between the same parties for the same cause. The learned trial justice granted the several motions upon the ground that “ the matters alleged in the complaint are available as a defense in the action now pending in this court in which the defendant Joseph L. Meade is plaintiff and the plaintiff herein [is] one of the defendants, and all the relief which the plaintiff seeks in this action can be secured in such action.”
The appellant contends that in a motion made under rule 106 a complaint cannot be dismissed upon the ground that the plaintiff has an adequate remedy at law, and that such issue must be raised by answer.
The respondents, on the other hand, assert that under the Civil Practice Act a defendant must set up in his answer all counterclaims, both legal and equitable, which he has against the plaintiff; that such being the case, the plaintiff has an adequate remedy at law and can and should be compelled to litigate her alleged equitable cause of action in the action brought against her by the aforesaid Joseph L. Meade.
The complaint alleges that the plaintiff, Caroline M. Robinson, at the request of certain parties had conveyed and transferred to the defendant Hubert E. Rogers and to his corporation, Moss Estate, Inc., certain valuable real estate and securities in trust and as collateral security for the payment of certain loans made by Katharine T. Martin and Mary Martin to the plaintiff; that said Sogers, in violation of plaintiff’s rights, set up a claim that said transfers were an absolute sale and refused to return to the plaintiff her'property on tender of the balance due on such loans; that said Rogerfq-^ttempted to appropriate such property to his own use; that an aetio'ri waA-brought in 1920 in the Supreme Court of the county of New York against said Rogers and other defendants to declare said transaction ■■£ loan' and to recover plaintiff’s said real estate and securities vnd for an accounting; that said action was tried and a decision rendered in favor of the plaintiff in June, 1922, the decree being entered in July, 1922; that said decree adjudged that said Rogers and his said corporation, Moss Estate, Inc., are trustees for the plaintiff as to said real estate and securities and directed the said Rogers and his said corporation and the other defendants to account and to deliver said properties to the
It is the contention of the appellant that under rule 106 of the Rules of Civil Practice the court has no power or authority in any case to dismiss a complaint on the ground that it appears upon the face thereof that the plaintiff has an adequate remedy at law. The appellant argues that this is not one of the grounds mentioned in the rule. I am of opinion, however, that the appellant’s contention in that regard cannot be sustained. The action having been brought on the equity side of the court, the law is well settled that the complaint should show that the plaintiff has no adequate remedy at law. If the complaint shows upon its face that the plaintiff has an adequate remedy at law, a motion to dismiss made under rule 106 of the Rules of Civil Practice should be granted, with leave to serve a proper complaint on the law side of the court. (Low v. Swartwout, 171 App. Div. 725; Adelson v. Sacred Associates Realty Corporation, No. 1, 192 id. 601.)
It does not necessarily follow, however, that if it appears upon the face of the complaint that the plaintiff might set up the same facts alleged therein as a defense or counterclaim in an action at law theretofore brought against him he is thereby compelled to do so and has for that reason an adequate remedy at law. (Brown v. Gallaudet, 80 N. Y. 413; Silberstein v. Begun, 232 id.. 319, 323, 324; Newgent v. Alsberg, 173 App. Div. 878, 880.) In Newgent v. Alsberg (supra, at p. 880) Scott, J., says:
“ But even if the matter as pleaded in this action might have been interposed as a counterclaim in the prior action, the plaintiffs were not under any obligation to so interpose it, but were entitled to reserve it to be sued upon as a separate cause of action. This has been held in many cases. * * * The cause of action for dissolution of the partnership was not so tied up with the action for damages for being led into the agreement as to impose any obligation upon these plaintiffs to interpose the present cause of action as a defense in that actissa^They had the right to reserve it and to bring it on in an actiomvvhich they themselves could control and not in one which the present defendant could control and direct as plaintiff.”
Nor do I think it can fairly be said, because a plaintiff may have the right to set up an equitable defense or an equitable counter
It, therefore, follows that a defendant in an action at law is not compelled by any provision of the Civil Practice Act to assert an equitable defense or counterclaim if he has one under the penalty of forever being barred from bringing suit thereon if he does not do so.
Certain of the defendants say they are not interested in the subject-matter of the action and have no lien or claim upon or growing out of the property and transaction involved. The mere statement to that effect contained in the brief is not sufficient to warrant a dismissal of the complaint as to them. The complaint fully states, the facts which givo-rise to plaintiff’s alleged cause of action and states expliciti^fas above shown, that the defendant Meade is a dummy; that all of these defendants conspired together to defraud the plaintiff; that they have or claim to have a financial interest in any profit realized in any recovery by Meade from the plaintiff , over and above the $1,000, and that in order to defraud
Section 211 of the Civil Practice Act provides in part: “ All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative.” Under section 212 a defendant need not be interested in all the relief claimed, and section 213 reads as follows: “ Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, to the intent that the question as to which, if any, of the defendants is hable, and to what extent, may be determined as between the parties.” The plaintiff, therefore, by the plain provisions of the Civil Practice Act has the right to maintain this action against all of these defendants whom she alleges claim an interest in the property she seeks herein to recover.
It may be that under other sections of the Civil Practice Act the defendants Booth, Hewitt and Inness Whitaker might move to have their names dropped and stricken out as parties defendant, if, in fact, as they assert in their brief, they have and claim no interest in the subject-matter of this action. In such event the moving affidavits and papers would necessarily be such as to forever estop them from asserting any claim which could in any way be detrimental to the plaintiff or defeat or abridge her alleged right of recovery. Section 192 of the Civil Practice Act provides: “ No action or special proceeding shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added or substituted and parties misjoined may be dropped by order of the court at any stage of the cause as the ends of justice may require.” A mere disclaimer of interest, however, contained in a brief, cannot prevail over the verified allegations of the complaint. Particularly is this true in a motion under rule 106 of the Rules of Civil Practice seeking to dismiss" a complaint in an equitable action. The pleading would, I believe, have been good against
For the reasons above stated, the several orders appealed from should be reversed, with ten dollars costs and disbursements, and the motions denied, with ten dollars costs.
Clarke, P. J., and McAvoy, J., concur; Smith and Page, JJ., dissent and vote to affirm in so far as the complaint was dismissed as against Inness Whitaker, Enos S. Booth and John V. Hewitt, and concur in the opinion for reversal and denial of the motion to dismiss as to the other respondents.
In each case: Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.