Zimmerman v. . Kinkle

| NY | Feb 7, 1888

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] There is nothing upon the face of the bond to impeach its validity, and whatever might be the real transaction between the parties it is to be made out by allegations and evidence. The terms of the complaint show clearly enough that the bond is founded on a consideration condemned both by morals and public policy, and, therefore, the defendant claims that a party to it cannot be relieved, but must be left to the consequences of the forbidden transaction. How this might be if the action were by the plaintiffs in their individual capacity, it is not necessary to inquire. They come into court as executors of a deceased person and in a representative character. If in delicto at all, they are not in pari delicto, and the enforcement of the rule would secure to the defendant the enjoyment of money which never belonged to his principals, and which did belong to the estate in the honest management of which the plaintiffs also owed a duty to the testator's beneficiaries. Nor should the defendant be heard to complain of this. He admits by his demurrer that the money was trust money and that he received it from the plaintiffs as executors and trustees. They had no power to part with it for the purpose for which he received it, and in seeking to recover it back they are merely performing a duty in the execution of which a court of equity may properly assist. The principle which justifies this conclusion, was applied in the recent case ofWetmore v. Porter (92 N.Y. 76" court="NY" date_filed="1883-03-27" href="https://app.midpage.ai/document/wetmore-v--porter-3613184?utm_source=webapp" opinion_id="3613184">92 N.Y. 76), where it was held, that whoever receives property knowing it to be the subject of a trust and to have been transferred by the trustee in violation of his duty or power, takes it subject to the right, not only of thecestui que trust, but also of the trustee to reclaim possession or recover for its conversion. That case also holds that in such an action it is not necessary to bring the plaintiffs before the court in their individual character, and this answers the objection that the omission to do so in this action makes a defect of parties. In another aspect also the complaint is sufficient. It charges that the bond "was given for no consideration, but was extorted from the plaintiffs," and that these circumstances were also known to the defendant. The defendant argues that the averment as to the bond being wrongfully extorted from the plaintiffs, is a mere conclusion, and that no facts are stated. Against a demurrer the general statement is sufficient. It defines an unlawful method or process by which an object is accomplished or end attained, and if not sufficiently definite or conclusive, the defendant's remedy was by motion. (Marie v. Garrison,83 N Y, 14.)

Nor does the complaint improperly join two causes of action. It narrates a single transaction in which all parties were concerned, and while more than one cause may appear entitling the plaintiffs to the relief sought, they only represent acts by the commission of which the right to relief is made out. That some might have been omitted and a cause of action remain, should not prejudice the plaintiffs. The object of the suit is single — to have the money restored to the fund from which it was taken. The right to that relief would follow from the cancellation of the bond, but the presence of Kinkle as well as that of the obligees was necessary to prevent further litigation and have the various interests of the parties determined in one action. This was the conclusion of the General Term.

The judgment appealed from should, therefore, be affirmed.

All concur.

Judgment affirmed.