Higgins v. Chrichton

63 How. Pr. 354

• Court: New York Court of Common Pleas
• Decided: July 15, 1882
• Status: Published

Opinion

Beach, J.

This appeal is from a judgment entered upon -decision sustaining the demurrers of certain defendants to the (Complaint, upon the ground, among others, of improperly uniting causes of action. The plaintiff is assignee of judgments against the defendant Thomas J. Chrichton. Two of .the other defendants who demur are alleged to hold chattel mortgages upon the debtor’s personal property. These liens, -and' a general assignment for the benefit of creditors, to ¡another defendant, are sought to be set aside as fraudulent, or in default of that relief, to be postponed to the lien of the ¡plaintiff’s judgments. The defendant Close is averred to hold ¡a valid chattel mortgage, and the only relief prayed ¡against him is its enforced foreclosure, and the application of •any surplus upon plaintiff’s judgments. The cause of action •against the defendants other than Close seems to be founded -on fraud. The complaint is barren of allegation charging him with fraudulent action, prejudicial to plaintiff’s rights under his judgments, and the validity of his security is not impeached. The causes of action united in this pleading — the one for fraud affecting the assignment and chattel mortgages, the other against Close, the owner of a valid incumbrance — do not affect all the parties to the action, and consequently are not capable of joinder (Code Cvvil Pro., sec. 484). It is not an answer to the objections, that no cause of action is stated against Close. The pleader has assumed to allege one, and cannot claim failure for a shield, when the pleading is thus questioned by other defendants. Whether or not a cause of action is set forth against Close, depends upon adjudication by the court. Until so decided its averment must be deemed sufficient.

The judgment should be affirmed, with costs.