88 N.Y.S. 839 | N.Y. App. Div. | 1904
The plaintiff is the trustee in bankruptcy of the defendant Henderson, and this action is brought to recover from the National Casket Company the value of certain property belonging to said bankrupt, taken by said company under a chattel mortgage which plaintiff claims to have been fraudulent and void as against creditors. The answer of the defendant Henderson admits some of the material allegations of the complaint, and denies “ each and every other allegation in said complaint contained not hereinbefore specifically admitted or denied.” He then sets up as a separate defense
The plaintiff demurred to this so-called defense “ on the ground that the same is insufficient in law upon the face thereof.” This demurrer has been overruled by the court at Special Term, the plaintiff appealing from the interlocutory judgment entered upon the decision. It does not appear to be necessary at this time to determine a supposed conflict between the cases of Prosser v. Matthiessen (26 Hun, 527), decided in this department, and Mittendorf v. N. Y. & Harlem R. R. Co. (58 App. Div. 260), decided in the first department, upon the question of whether the non-joinder of parties has been properly pleaded, for in the view which we take of this case the defense is in substance insufficient. The plaintiff, as the trustee in bankruptcy of the defendant Henderson, brings this action in effect to set aside a chattel mortgage, alleged to have been made in fraud of the creditors of the defendant Henderson. This chattel mortgage was originally made and placed on file in the office of the clerk of Kings county on the 29th day of May, 1899, and was kept in force up to and including the date of the foreclosure of such chattel mortgage on the 4th day of November, 1901, and the fact that the defendant Henderson may have given other chattel mortgages to Margaret F. Dodd and other persons whose names are not mentioned, cannot be a defense to the charge of fraud in connection with the making and filing of the original chattel mortgage and its subsequent foreclosure. ' Margaret F. Dodd and the other persons, if they have valid liens upon the chattels, cannot be deprived of their rights in the present litigation. If the action results in a judgment or decree setting aside the chattel mortgage of 1899, it will serve to make the lien of Margaret F. Dodd and others, credit
This separate defense is in the nature of a plea in abatement; it says in effect, assuming that the facts .are as alleged in the complaint, this action cannot proceed to judgment because of the fact that there is a non-joinder of parties defendant. In this view of the case, the defense is properly considered as a demurrer, which may be sustained for a defect of parties only upon the grounds, that the demurring party has an interest in having the omitted parties joined, or that he is prejudiced by the non-joinder. (Anderton v. Wolf, 41 Hun, 571, 572; Bauer v. Platt, 72 id. 326, and authorities there cited.) What possible difference can it make to the defendant Henderson whether Margaret F. Dodd is made a party to this action or not ? The gravamen of the action is the fraud in connection with the original chattel mortgage; that is the only controversy between the plaintiff, as trustee in bankruptcy of the defendant Henderson, and the defendants in this action. There is not a word
The interlocutory judgment appealed from should be reversed, and the demurrer of plaintiff should be sustained, with costs.
All concurred.
Interlocutory judgment reversed, with costs, and plaintiff’s demurrer to defense sustained, with costs.