61 N.Y.S. 585 | N.Y. App. Div. | 1899
The complaint sets forth but one cause of action, namely, a right existing in the plaintiffs to have the defendant Hunt return to them, with his indorsement as administrator, a certificate of deposit in the defendant bank, of which certificate they are the owners, to the end that, upon plaintiffs’ presentation thereof to the bank so indorsed, they may obtain the money thereon, which the bank meantime, because of the non-presentation of the certificate so indorsed, withholds.
That the plaintiffs have an adequate remedy at law is defensive matter and should be set up by answer. (Tucker v. Manhattan R. Co., 78 Hun, 439, and cases there cited.) It does not affirmatively appear upon the face of the complaint that the plaintiffs have an adequate remedy at law against both defendants in a single action, or against the demurring defendant. The complaint does not state that he is responsible ; moreover, he is here charged as administrator and joined with the bank, and to say that he might have been sued alone individually at law, is like saying that the plaintiffs might have sued somebody else. The defendant Hunt’s contention that the plaintiffs have an adequate remedy at law against the bank, if it had been pleaded, would have been like ah allegation that he is not liable because somebody else is.
If the plaintiffs have an adequate remedy at law against the bank, and if by virtue of any peculiar circumstances that fact operates to discharge the defendant Hunt in equity, his pleading should affirmatively show it. This his demurrer does not do.
All concurred, except Putnam, J., not voting.
Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with usual leave to defendants to answer upon payment of costs.
