138 N.Y.S. 720 | N.Y. App. Div. | 1912
The plaintiffs are the committee of all the property within this State of William R. Ward, an incompetent person. The complaint alleges that a commission in the nature of a writ de lunático inquirendo was duly issued hy the Court of Chancery of the State of New Jersey, December 28, 1907, to inquire into the lunacy of William R. Ward; that upon inquisition and by the jurors it was duly found that said Ward was at the time of taking said inquiry a lunatip and of unsound mind, and did not enjoy lucid intervals, so that he was not sufficient for, or capable of the government of himself, his lands and tenements, goods and chattels, and that he had been in that same state of lunacy and unsoundness of mind from at least the 1st day of May, 1904; that said proceedings were duly confirmed and that plaintiffs were appointed a committee and duly qualified; that they were subsequently duly appointed a committee of all the property within this State of said Ward; that said Ward is the owner of certain described bonds and stocks, of which the plaintiffs are entitled to possession by virtue of a special property therein, arising out of their appointment as committee; that at divers times during the year 1907 the defendant obtained possession from said Ward of said chattels; that plaintiffs have duly demanded said chattels but defendant refused to deliver the same, alleging it had received them from Ward during 1907, at a time when he was a depositor with it as security for money claimed to have been advanced upon promissory notes claimed to have been signed by said Ward and promissory notes claimed to have been indorsed as accommodation indorser by said Ward; and at the time or times defendant claims the said Ward made or indorsed said notes and the same were delivered to defendant, Ward was
In its amended answer, for a further third, separate and distinct defense, the defendant alleged .that the plaintiffs herein, prior to the commencement of this action, and on or about the 27th day of November, 1911, commenced .an action in the New York Supreme Court, New York county, wherein these plain tiffs are plaintiffs and this defendant is the defendant, which said action was an action in replevin and in which the plaintiffs "claim title and right to possession of the chattels mentioned and described in paragraph 3 of the complaint herein; that with knowledge of all the facts in connection with this action and said chattels, the plaintiffs have duly elected to proceed at law in said replevin action, and cannot now, after such election, bring this action in equity. The defendant further answering the amended complaint, for a further fotirth and separate and distinct defense alleges that the plaintiffs herein have, a full, adequate and complete remedy "at law for any and all the matters alleged in the complaint in this action brought by them in equity.
To these two defenses the plaintiffs interposed demurrers on the grounds that the same were insufficient in law upon the face thereof. The said demurrers having been ■ overruled plaintiffs appeal.
The third defense, that the plaintiffs have instituted an actio: for replevin, and, therefore, have duly elected to proceed at la and cannot, after such election, bring this action in equity, not alleged to be a partial defense. That it is a partial defens to the cause of action set up in the complaint, if any defense a all, is apparent. Its statement as to the replevin action i¡ limited. It is that such action was brought under a claim o: title and right to possession of the chattels mentioned and described in paragraph 3 "of the complaint herein. The com|
The demurrer to the fourth' separate and distinct defense should also have been sustained. This complaint is in equity; the relief demanded is that which can only be administered by a court of equity in an equitable action. In Golden v. Health Department (21 App. Div. 420) there was a demurrer to a defense of adequate remedy at law. Mr. Justice Rumsey said: “ Neither of these defenses contains any general or special denial, but each one is confined simply to the statement of new matter which is relied upon to constitute a defense. In such a case, where a demurrer is interposed to an affirmative defense consisting of new matter entirely and containing no denial, all the allegations of the complaint are admitted for the purposes of the demurrer, as though the defense demurred to was only the defense set up in the answer. * * * There can be no doubt that the plaintiff has set up in this complaint an equitable cause of action, and that upon the facts stated he has not an adequate remedy at law. * * "x" The 3d paragraph of the answer, constituting a separate defense, is, therefore, not sufficient, and the plaintiff was entitled to judgment upon his demurrer to that defense.”
Edmonds v. Stern (89 App. Div. 539) was an action for the cancellation of certain contracts. Among other defenses the answer set up that the plaintiff has an adequate remedy at law which was demurred to as insufficient. Mr. Justice O’Brien said: “ The question presented is not, so far as this court is concerned, a new one, it having been expressly passed upon in Golden v. Health Department (21 App. Div. 420). The Appellate Division of the Second Department followed that case and held that it was controlling where the same uestion arose in Olivella v. N. Y. & H. R. R. Co. (51 App. iv. 612). The opinion of the Special Term in this latter case * * will be found in 31 Miscellaneous Reports, 203,
In Holland v. Grote (193 N. Y. 262) Hisoock, J., said: “The second defense ‘ that the plaintiff has an adequate'and complete remedy at law ’ likewise is insufficient. In the absence of other allegations this answer must be construed and interpreted by reference to the material allegations of the complairit as they stand. It does not allege any additional facts showing that an adequate remedy at law does exist, but simply asserts that on the complaint as framed such remedy does exist. An inspection of the complaint shows that on the material and substantial facts as there alleged the plaintiff must necessarily resort to equity and cannot secure sufficient relief elsewhere; unless he completely changes his cause of action he must seek equitable relief.” The interlocutory judgment sustaining plaintiff’s demurrer was affirmed.
It follows, therefore, that the order appealed from overruling the demurrers to the third and fourth defenses should be reversed, with costs and disbursements to the appellants, and that said demurrers be sustained, with costs, with leave to defendant to amend its answer within twenty days on payment óf costs in this court and in the court below.
Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.
Order, so far as appealed from, reversed, with ten dollars costs and disbursements, and demurrers sustained, with ten dollars costs, with leave to defendant to serve amended answe on payment of said costs.