Duden v. Maloy

37 F. 98, 1888 U.S. App. LEXIS 2724

• Court: U.S. Circuit Court for the District of Eastern New York
• Decided: November 21, 1888
• Status: Published

Opinion

Lacombe, J.

The Associated Lace-Makers’ Company is not an indispensable party to this suit. The accounts of the firm of Duden & Co., of New York, the sole partners in which were the complainant and defendant, can ho adjusted, and a decree for money judgment against either sido entered, without the presence of the corporation. Defendant, however, claims that the Lacc-Makers’ Asssociation should be brought in because it has become possessed of property of the old partnership, which may be dissipated unless the court impounds it, and which should be applied to the payment of whatever judgment the defendant may obtain against complainant upon the accounting; complainant himself being, as defendant contends, irresponsible. Defendant has an action pending in the supreme court against the corporation for similar relief, in which by the filing of a Ms pendens he has impounded real estate worth from §10,000 to 815,000. The application now made is not of right, but addressed to the discretion of the court. It is essential to its granting that the defendant should show a reasonable probability of his obtaining a judgment against the complainant for a greater sum than that already secured by his Ms pendens in the state court. That he will be able to obtain such a decree is vigorously disputed by complainant. The question is one which should not be decided upon affidavits. It appears that all the evidence upon that point deemed material by either party has been taken regularly before the master; but though the record was completed some time since, defendant has not pressed the case to a decision, and since the argument of this motion has, as the master informs me, asked for and obtained an adjournment. This fact, coupled with his long delay in moving to make the corporation a party, is sufficient reason for denying the motion.