136 F. 694 | S.D.N.Y. | 1905
An allegation of citizenship is not jurisdictional, except in cases in which the jurisdiction depends on the diverse citizenship of the parties. 2 Abb. U. S. Prac. 68. An. allegation of the residence of the parties is not necessary to impart jurisdiction. Teese v. Phelps, 1 McAll. 17, Fed. Cas. No. 13,818. An omission to comply with the provisions of rule 20, requiring the place of abode of the parties to be stated, is, in my opinion, not properly corrected by demurrer, but by a motion. Harvey v. Richmond, etc., Co. (C. C.) 64 Fed. 19.
The general rule established by the authorities is that, in suits in equity of this kind, a previous demand is not necessary. It is undoubtedly necessary in actions at law, but in equity the bringing of the suit is itself a sufficient demand. Bruce v. Tilson, 25 N. Y. 194, 202.
The demurrers do not allege as grounds of demurrer that the bill is multifarious, or that the two causes of action are inconsistent. But in any event I think that it is not necessarily impossible that the payment may have been at the same time a preference, and a payment made with intent to hinder, delay, and defraud creditors; and, if it is' either, it seems to me that the bill may be drawn so as to meet the alternative. There is alleged in these bills one transaction, consisting of a payment of money. The plaintiff alleges that it amounted to either a preference or a fraudulent payment, and that in either case he is entitled to its return. I cannot see in such an allegation any such inherent inconsistency, as there is in those cases in which it has been held to be not per
The demurrers are overruled, with costs, with leave to the defendants to answer within 10 days upon payment of such costs.
