Lund v. Seamen's Bank for Savings

37 Barb. 129, 23 How. Pr. 258, 1862 N.Y. App. Div. LEXIS 84

• Court: New York Supreme Court
• Decided: May 5, 1862
• Status: Published

Opinion

By the Court,

Leonard, J.

The code permits a demurrer to an answer only where it contains new matter. A simple. denial of the allegations of the complaint is not within the provision. (Code, § 153.) A denial may be sham, frivolous or immaterial. In such case the plaintiff may bring the question before the court summarily by motion, but it Is ' not a ground of demurrer. The demurrer to the first defense is therefore not well taken, and the order appealed from must, to that extent, be reversed.

The demurrer to the second defense presents an entirely different question. The plaintiff is the assignee of a depositor in the defendant’s bank. The defendant alleges that the deposit is the proceeds of sundry securities belonging to Pehr Erik Larsson and others, which the depositor obtained and fraudulently converted' into money, and that Pehr Erik Larsson &c. have notified' the defendant of these facts, and that they claim the deposit as their property.

It must be conceded on authority, as insisted by "the defendant, that the claim of the depositor is a chose in action and not a bailment. (Chapman v. White, 2 Seld. 412, 417. Downes v. The Phoenix Bank, 6 Hill, 297.) The rule which forbids a bailee to deny the title of his bailor is not applicable. Ho principle of law can however be found which permits a debtor for goods sold, or for money lent or deposited, to set up, as a defense against the claim of his creditor, that his title to the goods sold, or money lent or deposited, is defective or wrongful. That question is of no concern io the purchaser or borrower, unless the third party who claims to have been despoiled of his goods or money will proceed, by process of law, to enforce his rights. It can never be permitted that a debtor may volunteer, by plea or answer, the protection of the claims of those with whom he has had no dealings, to defeat his liability for the performance of his contracts.

The law forbids the defendant to interplead, because these third parties are not in privity with the depositor, but were • claiming by a hostile and superior title. (Fletcher v. Troy Savings Bank, 14 How. Pr. R. 383. Shaw v. Coster, 8 Paige, 343. Marvin v. Elwood, 11 id. 365.)

It would be a mere evasion to permit the defendant to interpose such rights of third parties as a defense, which they are prohibited from alleging as grounds for an interpleader. The pretended claimants have shown no wish to enforce their claims against the- depositor, if -any they have.

[New York General Term, May 5, 1862.

The order appealed from should he affirmed as to the second defense, without costs.

IngráJiam, Leonard and RoseIcrans, Justices.]