First National Bank v. Wright

Appellate Division of the Supreme Court of New York

First National Bank v. Wright

38 A.D. 2, 56 N.Y.S. 308

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 1899

StatusPublished

Cited by1 cases

This text of 38 A.D. 2 (First National Bank v. Wright) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First National Bank v. Wright, 38 A.D. 2, 56 N.Y.S. 308 (N.Y. Ct. App. 1899).

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Opinion

Patterson, J.:

The order striking this case from the calendar of the court must be reversed. The cause was upon the Special Term calendar on the 17th of November, 1898. Issues of law raised by demurrer were involved. It was a creditor’s action brought against .Alexander Wright and Annie E. Nelson, who had jointly and severally demurred to the complaint, and Isabella E. Reilly, who had separately demurred, the ground of each demurrer being the same. It was alleged in the complaint that Alexander Wright, the judgment debtor, had been the owner of the real estate described in the complaint; that he had conveyed it to one James McKinley without consideration and fraudulently ; that McKinley conveyed it without consideration to Eliza A. Wright, the wife of Alexander Wright; [4]*4that Alexander Wright had continuously remained in possession and apparent ownership and enjoyment of the property ; that prior to the commencement of the action Eliza Wright died intestate, leaving her surviving her husband, Alexander Wright, and two children, namely, Annie E. Nelson and Isabella E. Reilly. The demurrers were upon the ground that it appeared upon the face of complaint that there was a defect of parties, consisting in the nonjoinder of James McKinley and his wife. It is recited in the order appealed from that the cause had been on the day calendar of the the Special Term, and adjourned from time to time until the day first above mentioned, when it was suggested that Alexander Wright had died in July, 1888; and thereupon, on motion, the cause was stricken, not only from the day calendar, but as the order may be interpreted, from the general calendar of the court.

As the demurrers of the defendants Nelson and Reilly were separate and raised issues between those parties and the plaintiff, which could be disposed of irrespective of' the presence or absence of Wright in the suit, the order was erroneous.. Those separate demurrers simply went to the proper constitution of the suit as against the demurrants. The subject of the power to render a judgment upon the merits of the case without the heirs or personal representatives of Alexander Wright being before the court, was not involved. Wright’s conveyance, even if fraudulent as to creditors, was good as against himself. The title having been conveyed by McKinley to Mrs. Wright, and she having died intestate, it would seem that Alexander Wright’s relation to the property was only that of a tenant by the curtesy in possession, which tenancy, of course, would cease with his death. On the naked allegations of the- complaint, therefore, there was no reason why the issues of law on the separate demurrers should not have been heard and disposed of when the case was called on the day calendar.

The order must be reversed, with costs, and the case restored to the calendar.

Van Brunt, P. J., Barrett, Rumset and O’Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the case restored to the calendar. •

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Patterson, J.:

The order striking this case from the calendar of the court must be reversed. The cause was upon the Special Term calendar on the 17th of November, 1898. Issues of law raised by demurrer were involved. It was a creditor’s action brought against .Alexander Wright and Annie E. Nelson, who had jointly and severally demurred to the complaint, and Isabella E. Reilly, who had separately demurred, the ground of each demurrer being the same. It was alleged in the complaint that Alexander Wright, the judgment debtor, had been the owner of the real estate described in the complaint; that he had conveyed it to one James McKinley without consideration and fraudulently ; that McKinley conveyed it without consideration to Eliza A. Wright, the wife of Alexander Wright; [4]*4that Alexander Wright had continuously remained in possession and apparent ownership and enjoyment of the property ; that prior to the commencement of the action Eliza Wright died intestate, leaving her surviving her husband, Alexander Wright, and two children, namely, Annie E. Nelson and Isabella E. Reilly. The demurrers were upon the ground that it appeared upon the face of complaint that there was a defect of parties, consisting in the nonjoinder of James McKinley and his wife. It is recited in the order appealed from that the cause had been on the day calendar of the the Special Term, and adjourned from time to time until the day first above mentioned, when it was suggested that Alexander Wright had died in July, 1888; and thereupon, on motion, the cause was stricken, not only from the day calendar, but as the order may be interpreted, from the general calendar of the court.

As the demurrers of the defendants Nelson and Reilly were separate and raised issues between those parties and the plaintiff, which could be disposed of irrespective of' the presence or absence of Wright in the suit, the order was erroneous.. Those separate demurrers simply went to the proper constitution of the suit as against the demurrants. The subject of the power to render a judgment upon the merits of the case without the heirs or personal representatives of Alexander Wright being before the court, was not involved. Wright’s conveyance, even if fraudulent as to creditors, was good as against himself. The title having been conveyed by McKinley to Mrs. Wright, and she having died intestate, it would seem that Alexander Wright’s relation to the property was only that of a tenant by the curtesy in possession, which tenancy, of course, would cease with his death. On the naked allegations of the- complaint, therefore, there was no reason why the issues of law on the separate demurrers should not have been heard and disposed of when the case was called on the day calendar.

The order must be reversed, with costs, and the case restored to the calendar.

Van Brunt, P. J., Barrett, Rumset and O’Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the case restored to the calendar. •

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Bluebook (online)

38 A.D. 2, 56 N.Y.S. 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-v-wright-nyappdiv-1899.

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