20 How. Pr. 158 | N.Y. Sup. Ct. | 1860
The complaint relates to an alleged fraud committed by the defendants as trustees of property in •which the plaintiff had an interest several years ago, whereby the defendants have caused an injury to the plaintiff.
The act complained of might have justified the court in appointing a receiver, or removing the defendants from their trust when the offence was committed, and when the plaintiff had an interest in the property.
It appears now, from the answer, that the plaintiff has sold and transferred all his interest in the property which the defendants held as trustees, and which they probably still hold.
His right of action for the injury done to his property, in its value, by the alleged fraud of the defendants, remains however.
The plaintiff cannot demand the appointment of a receiver of property in which he has no interest.
The allegation of the answer is distinct that the plaintiff sold all his shares or interest in the association of which the parties to this action were members in December last. That allegation is not referred to in the affidavit on which the plaintiff’s motion for a receiver is founded.
For the purpose of this motion this allegation of the answer must be ta*ken to be true. On reference to the complaint, folio 25, the fact that the plaintiff’s interest in the property of the association terminated last December, is, impliedly, there stated.
The motion for a receiver is therefore denied.
The motion to make the denial contained in the answer, at folio 15, more definite and certain, is granted.
The allegation of the complaint is that the defendants sold the goodwill, as well as the property, at the various stations, &c., of the Erie railroad division.
The hypothetical admission of a sale, at folio 21, of the answer, refers, I think, to the property of this express route belonging to the association, as distinguished from the
Assuming that the defendants have denied that they procured the railroad to make this refusal, it may be that they might then allege that it was for the interest of the American Express Company to sell the stations and the property of the company along the route, which they could no longer use, and that the sale was made in the exercise of sound judgment and discretion. For this reason I arrive at the conclusion that the answer does not afford sufficient internal evidence of the falsity of the denial at folio 15, to warrant an order expunging it on that ground.
There is no provision of the Code that allows an answer, or a part thereof, to be stricken out on the ground of inconsistency only. ( Ostrom agt. Bixby, 9 How. Pr. R. 59 ; Hollenbeck agt. Clow, 9 How. Pr. R. 290.)
