Napier v. Westerhoff

U.S. Circuit Court for the District of Southern New York

Napier v. Westerhoff

153 F. 985, 1907 U.S. App. LEXIS 5143

CourtU.S. Circuit Court for the District of Southern New York

DecidedApril 8, 1907

StatusPublished

This text of 153 F. 985 (Napier v. Westerhoff) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Napier v. Westerhoff, 153 F. 985, 1907 U.S. App. LEXIS 5143 (circtsdny 1907).

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Opinion

HAZEL, District Judge.

This is an action for dissolution of the partnership agreement and an accounting. The defendants urge that the supplemental bill is wholly unnecessary, as there is nothing in fact to prevent complainant from making complete proof, not only of the acts threatened before the institution of the suit, but also as to the acts of the defendants which have occurred subsequent thereto. The asserted new matter or a portion of it could probably lie introduced in evidence to support the original bill (Lyster v. Stickney [C. C.] 12 Fed. 609), but as such additional matter could have been pleaded in the original bill, if it had then existed and is now simply conformatory of the original bill, I can perceive of no serious objection to permitting it to be set forth in the supplemental bill (21 Ency. of PI. & Pr. 9). Defendants do not claim that they will in any manner be prejudiced by the course of pleading adopted by the complainant. Indeed, the defendants are fully advised by the supplemental bill of all the allegations that they are to meet. The objection, therefore, that the asserted new matter may not be averred by way of supplement to the original bill is overruled.

It is further objected that the supplemental bill improperly includes a bill of discovery. The discovery sought is not in aid of any other suit at law or in equity, but is material and incidental to the relief sought and the facts- as to which discovery is sought rest in the knowledge of the defendants. In these circumstances, I am of opinion that the authorities cited by the defendants are inapplicable.

The demurrer is overruled with costs, with leave to defendants to answer within 20 days.

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HAZEL, District Judge.

This is an action for dissolution of the partnership agreement and an accounting. The defendants urge that the supplemental bill is wholly unnecessary, as there is nothing in fact to prevent complainant from making complete proof, not only of the acts threatened before the institution of the suit, but also as to the acts of the defendants which have occurred subsequent thereto. The asserted new matter or a portion of it could probably lie introduced in evidence to support the original bill (Lyster v. Stickney [C. C.] 12 Fed. 609), but as such additional matter could have been pleaded in the original bill, if it had then existed and is now simply conformatory of the original bill, I can perceive of no serious objection to permitting it to be set forth in the supplemental bill (21 Ency. of PI. & Pr. 9). Defendants do not claim that they will in any manner be prejudiced by the course of pleading adopted by the complainant. Indeed, the defendants are fully advised by the supplemental bill of all the allegations that they are to meet. The objection, therefore, that the asserted new matter may not be averred by way of supplement to the original bill is overruled.

It is further objected that the supplemental bill improperly includes a bill of discovery. The discovery sought is not in aid of any other suit at law or in equity, but is material and incidental to the relief sought and the facts- as to which discovery is sought rest in the knowledge of the defendants. In these circumstances, I am of opinion that the authorities cited by the defendants are inapplicable.

The demurrer is overruled with costs, with leave to defendants to answer within 20 days.

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153 F. 985, 1907 U.S. App. LEXIS 5143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/napier-v-westerhoff-circtsdny-1907.

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