26 N.Y.S. 708 | The Superior Court of the City of New York and Buffalo | 1893
While it is true that section 1204 of the Code provides that a “judgment may determine the ultimate rights of the parties on the same side, as between themselves, and it may grant to a defendant any affirmative relief to which he is entitled,” still this provision cannot reach such a case as this. The defendants can have relief against each other only in reference to the claim made against them by the plaintiffs, and as a part of the adjustment of that claim, and it must be based upon the facts involved in, and brought out by, the litigation and investigation of that claim. In such a case, all the parties being before the court, and all having been heard, and the facts being properly before the court, the rights, not only as between plaintiffs and defendants, but as between the parties on either side, can be adjusted. But here the matters which the defendant Howard sets up against his codefendant have nothing whatever to do with the plaintiffs or their claim. They are the facts for an independent litigation between him and his codefendant Plummer, and should not be permitted to embarrass this action. Kay v. Whittaker, 44 N. Y. 576. The plaintiffs ask to have both the chattel mortgage made by defendant Rogers to defendant Plummer on August 18, 1893, and the general assignment of said Rogers to defendant Howard, made on August 25, 1893, declared void and set aside. Both the answer of the defendant Plummer and that of defendant Howard deny the material allegations of the complaint, but the answer of defendant Howard proceeds to set up a cause of action, not as against plaintiffs, but as against his codefendant Plummer, alleging that the chattel mortgage was given to Plummer in view of the general assignment, which shortly followed, to Howard, but that it "preferred Plummer for more than one-third of the debtor’s estate, and the answer asks that the lien be reduced accordingly, and that a receiver of the property covered by the chattel mortgage be appointed, who shall pay over the amount to defendant Howard as assignee, after deducting the amount to which Plummer is legally entitled, etc. This has nothing to do with the plaintiffs’ claim, which is that both the chattel mortgage and assignment be set aside altogether. The plaintiffs are judgment creditors of defendant Rogers, with unsatisfied executions, the judgments having been entered after the general assignment, but the indebtedness having been contracted before both the general assignment and the chattel mortgage. The whole gist of the plaintiffs’ action is to set aside as fraudulent the chattel mortgage and general assignment, and the answer of Howard denies the fraud, but claims that the chattel mortgage gave Plummer more than he was entitled to as a preferred creditor, and that the amount should be reduced accordingly. The plaintiffs have nothing to do with this, unless it be that, as general creditors, it is for their interest that the amount in the hands of the