In re Vanderhoef

S.D. New York

In re Vanderhoef

28 F. Cas. 966, 18 Nat. Bank. Reg. 543

DecidedAugust 29, 1878

StatusPublished

This text of 28 F. Cas. 966 (In re Vanderhoef) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Vanderhoef, 28 F. Cas. 966, 18 Nat. Bank. Reg. 543 (S.D.N.Y. 1878).

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Opinion

CHOATE, District Judge.

This is a petition by one partner against his copartner. The petitioner is described as “of the city,, county, and state of New York.” The petition alleges that the petitioner and his co-partner Beatty “have been for the last four months copartners, carrying on business in the city óf New York.” There is no averment as to the residence of Beatty. Beatty appeared upon the return day of the order to show cause, and proceedings have been instituted for a composition. At the first meeting in composition certain creditors appeared and had' noted on the record their objections to the jurisdiction of the court that it is not averred that the debtors reside in the United States, and that the debts exceeding three hundred dollars, which it is averred that the debtors-owe, are debts provable in bankruptcy. The-debtors now join in a motion that the petitioner be allowed to amend his petition in the-particulars complained of. It is insisted on the part of the opposing creditors that the-court. not having got jurisdiction of the case by reason of the want of proper averments ih the petition, showing jurisdiction, the amendment cannot be allowed. But the authorities-are clear that if the facts- are such as sustain the jurisdiction, such necessary averments may be supplied by amendment Jackson v. Ashton, 10 Pet. [35 U. S.] 480. The question whether the averment as to the debts is defective is not passed upon. Motion granted.

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CHOATE, District Judge.

This is a petition by one partner against his copartner. The petitioner is described as “of the city,, county, and state of New York.” The petition alleges that the petitioner and his co-partner Beatty “have been for the last four months copartners, carrying on business in the city óf New York.” There is no averment as to the residence of Beatty. Beatty appeared upon the return day of the order to show cause, and proceedings have been instituted for a composition. At the first meeting in composition certain creditors appeared and had' noted on the record their objections to the jurisdiction of the court that it is not averred that the debtors reside in the United States, and that the debts exceeding three hundred dollars, which it is averred that the debtors-owe, are debts provable in bankruptcy. The-debtors now join in a motion that the petitioner be allowed to amend his petition in the-particulars complained of. It is insisted on the part of the opposing creditors that the-court. not having got jurisdiction of the case by reason of the want of proper averments ih the petition, showing jurisdiction, the amendment cannot be allowed. But the authorities-are clear that if the facts- are such as sustain the jurisdiction, such necessary averments may be supplied by amendment Jackson v. Ashton, 10 Pet. [35 U. S.] 480. The question whether the averment as to the debts is defective is not passed upon. Motion granted.

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Bluebook (online)

28 F. Cas. 966, 18 Nat. Bank. Reg. 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-vanderhoef-nysd-1878.