Eisner v. Eisner

35 N.Y.S. 393, 89 Hun 480, 96 N.Y. Sup. Ct. 480, 69 N.Y. St. Rep. 779

• Court: New York Supreme Court
• Decided: October 18, 1895
• Status: Published

Opinion

PER CURIAM.

This action is brought—First, for a partition of a joint life estate in certain real property, and for adjudging plaintiff to be the owner of liens thereon; and, second, for the partition and sale, or other judicial disposition, of a joint life estate in certain personal property. Interests in these properties are claimed by the plaintiff under the will of his mother, and while the will is not set. forth, nor made a part of the complaint, there is set forth a statement of what may be regarded as plaintiff’s summary of the provisions of such will, and his construction thereof; and, in addition to the pleading of other matters necessary and appropriate to complete the cause of action for the partition of the real nrouerty, there is an allegation that the defendants- are all the parties in being who are now in any way interested in said real property. The complaint in respect to the second cause of action, relating to the personal property, contains similar allegations as to the rights derived by plaintiff, under his mother’s will, to the personal property, the extent of Ms interest therein, and a statement of the others whom he regards as persons having, under such will, an interest in such property. The defendant Julius H. Eisner admits the provision of the will creating the joint life estate in the real property, as alleged, and then denies that the defendants named are the only persons in being interested, and avers that there is a defect of parties defendant, in that there have not been joined, as defendants, certain grandchildren of the deceased, all of whose names are given, and all of whom are in being, and who, it is alleged, have contingent interests, as remainder-men, in undivided shares of said property. Plaintiff moved to' compel the defendant Julius H. Eisner, both individually and as executor, etc., to make his answer more definite and certain—First, by alleging, in the words of the will, the part or portion which contains the devise under and by reason of. a contingent interest, in which it is claimed that such grandchildren are necessary parties; and, second, by numbering and separately stating, in specific and unequivocal language, what parts or portions of allegations of said answer are intended to be set up as distinct defenses to tMs action.

On the first ground, it seems to us unreasonable for the plaintiff, who has not himself set forth the will in full, nor given the provisions thereof verbatim, to insist that the defendant here, who followed his example, by setting forth what he considered to be a summary of its provisions and a construction thereof, should, by way of answer, be compelled to do more than the plaintiff did in stating Ms cause of action.

Upon the second ground, as we fail to find any distinct defenses, it would be difficult to comply with the plaintiff’s request that defondant should state what allegations are intended to be set up as distinct defenses. This is a suit in equity, and as the complaint itself is to be treated as an entirety, so should this answer, which, without asking any affirmative relief, is directed to a denial of the allegation that all the necessary parties are made defendants, and to a statement of reasons, based upon a construction of the provisions of the,testatrix’s will, which, in defendant’s view, preclude a partition or sale. We think, therefore, there were no distinct defenses requiring to be separately stated or numbered, and that the order making such a direction was improperly granted. That such an order is appealable has been many times held by this court. It should, accordingly, be reversed, with $10 costs and disbursements, and the motion should be denied, with $10 costs.