Wright v. Skinner

S.D. New York

Wright v. Skinner

136 F. 694, 1905 U.S. Dist. LEXIS 265

CourtDistrict Court, S.D. New York

DecidedApril 4, 1905

StatusPublished

Cited by3 cases

This text of 136 F. 694 (Wright v. Skinner) 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

Wright v. Skinner, 136 F. 694, 1905 U.S. Dist. LEXIS 265 (S.D.N.Y. 1905).

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Opinion

HOLT, District Judge.

An allegation of citizenship is not jurisdictional, except in cases in which the jurisdiction depends on the diverse citizenship of the parties. 2 Abb. U. S. Prac. 68. An. allegation of the residence of the parties is not necessary to impart jurisdiction. Teese v. Phelps, 1 McAll. 17, Fed. Cas. No. 13,818. An omission to comply with the provisions of rule 20, requiring the place of abode of the parties to be stated, is, in my opinion, not properly corrected by demurrer, but by a motion. Harvey v. Richmond, etc., Co. (C. C.) 64 Fed. 19.

The general rule established by the authorities is that, in suits in equity of this kind, a previous demand is not necessary. It is undoubtedly necessary in actions at law, but in equity the bringing of the suit is itself a sufficient demand. Bruce v. Tilson, 25 N. Y. 194, 202.

The demurrers do not allege as grounds of demurrer that the bill is multifarious, or that the two causes of action are inconsistent. But in any event I think that it is not necessarily impossible that the payment may have been at the same time a preference, and a payment made with intent to hinder, delay, and defraud creditors; and, if it is' either, it seems to me that the bill may be drawn so as to meet the alternative. There is alleged in these bills one transaction, consisting of a payment of money. The plaintiff alleges that it amounted to either a preference or a fraudulent payment, and that in either case he is entitled to its return. I cannot see in such an allegation any such inherent inconsistency, as there is in those cases in which it has been held to be not per[696]*696missible to unite two absolutely inconsistent causes for equitable relief, such as a claim to set aside a transfer as void, or to base a recovery on it as valid, and the other instances of legal inconsistency referred to by Judge Wallace in Wilkinson v. Dobbie, 12 Blatchf. 298, Fed. Cas. No. 17,670.

The demurrers are overruled, with costs, with leave to the defendants to answer within 10 days upon payment of such costs.

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HOLT, District Judge.

An allegation of citizenship is not jurisdictional, except in cases in which the jurisdiction depends on the diverse citizenship of the parties. 2 Abb. U. S. Prac. 68. An. allegation of the residence of the parties is not necessary to impart jurisdiction. Teese v. Phelps, 1 McAll. 17, Fed. Cas. No. 13,818. An omission to comply with the provisions of rule 20, requiring the place of abode of the parties to be stated, is, in my opinion, not properly corrected by demurrer, but by a motion. Harvey v. Richmond, etc., Co. (C. C.) 64 Fed. 19.

The general rule established by the authorities is that, in suits in equity of this kind, a previous demand is not necessary. It is undoubtedly necessary in actions at law, but in equity the bringing of the suit is itself a sufficient demand. Bruce v. Tilson, 25 N. Y. 194, 202.

The demurrers do not allege as grounds of demurrer that the bill is multifarious, or that the two causes of action are inconsistent. But in any event I think that it is not necessarily impossible that the payment may have been at the same time a preference, and a payment made with intent to hinder, delay, and defraud creditors; and, if it is' either, it seems to me that the bill may be drawn so as to meet the alternative. There is alleged in these bills one transaction, consisting of a payment of money. The plaintiff alleges that it amounted to either a preference or a fraudulent payment, and that in either case he is entitled to its return. I cannot see in such an allegation any such inherent inconsistency, as there is in those cases in which it has been held to be not per[696]*696missible to unite two absolutely inconsistent causes for equitable relief, such as a claim to set aside a transfer as void, or to base a recovery on it as valid, and the other instances of legal inconsistency referred to by Judge Wallace in Wilkinson v. Dobbie, 12 Blatchf. 298, Fed. Cas. No. 17,670.

The demurrers are overruled, with costs, with leave to the defendants to answer within 10 days upon payment of such costs.

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