Bouton v. Wheeler , 104 N.Y.S. 33 ( 1907 )

Chester, J.:

The demurrer for insufficiency and lack of capacity to sue is-based upon the failure to definitely allege where or by what officer or court the order appointing the plaintiff as trustee in bankruptcy of the defendant Wheeler was made or where and when it was entered. The allegation is that h.e was “ duly appointed the trustee * * * by an order duly made on the 16tli day of- March, 1905.” It may be conceded that, under the. authorities the allegation of a mere conclusion of law on which no issue could be raised is insufficient. (Gillet v. Fairchild, 1 Den. 80; White v. Low, 7 Barb, 204; Bangs v. McIntosh, 23 id. 591, 598; White v. Joy, 13 N. Y. 83, 86 ; Secor v. Pendleton, 47 Hun, 281.)

But the lack in definiteness for which the complaint is criticised in this respect is made up by fair and necessary inferences to be drawn from other allegations therein. It is alleged that the petition in bankruptcy was filed in the office of the clerk of the District Court of the ¡Northern District of Hew York and that Wheeler was by that court duly adjudged a bankrupt. The court may take judicial notice that there is but one clerk’s office in that district for that court. It is not like the Supreme Court of the State, which has as many clerk’s offices of the court as there are counties in tlie State. The Bankruptcy Act (approved July 1, 1898) provides in section 11 (30 U. S. Stat. at Large, 557) that the creditors of a bankrupt estate shall at their first meeting after the adjudication in bankruptcy appoint one trustee or three trustees of such estate, and if the creditors do not appoint a trustee or trustees the court shall do so. ¡Rule XIII of the General Orders in Bankruptcy (adopted by United States Supreme Court October, 1898) provides that the appointment of a trustee by the creditors shall be subject tó be approved or disapproved by the referee1 or by the judge. Under subdivision 7 of section 1 of the Bankruptcy Act (30 U. S. Stat. at Large,. 544) the word “ court,” as used in the act, is defined to mean . .“the court of bankruptcy in which the proceedings are pending, and may include the referee.” Under.the law there'may he many referees in bankruptcy appointed, hut the limits of the districts of e ich -are designated (Banfcr. Act [30 U. S. Stat. at Large, 555], § 34), and their jurisdiction is limited to their respective districts. (Id. § 38.) ■ There is an allegation in the complaint that orders have.been made by G. S, Tarbell, referee in bankruptcy, and that plaintiff was. appointed trustee in bankruptcy “ byan order duly made on ■ the 16'th day of March, 1905.” While it isnot stated that- the order ■ was made by the creditors with the approval, of the court or referee,' or by the court, because, of the failure of' the creditors to .act, the inference is plain that it was made in the bankruptcy proceeding pending in the northern district of Mew York and in the District Court, of that district, on the date named. The allegations of this complaint in this respect, it must he conceded, could well be more specific, but we think they are sufficient to require.an answer. This, view finds supjDort in Brenner v.. McMahon (20 A-pp. Div. 3), which was an action' brought" by executors where the allegations of the complaint were that “ Ellen McMahon died at the city of Brooklyn, leaving a. last will and testament dated February 3, 1896, which was duly admitted to probate .by tlie surrogate of the county of Kings, on the 15th of February, 1896. * * * That in and by said last will and testament the said Ellen McMahon duly appointed these plaintiffs to be the sole executors and trustees thereof, and- on the said 15th day of February, 18.96, letters testamentary were duly issued to these plaintiffs, who had duly qualified- as such on the same day.” The claim on demurrer was that the allegations were insufficient because of the absence of any allegation that the plaintiffs were appointed, as executors in' any proceeding before the court by any surrogate, or that letters testamentary were duly issued by any surrogate, but the court held the averments as to the letters, taken with the allegations relating to the making of the will appointing' the plaintiffs as executors and the admission of the will to probate -by the surrogate of Kings county, followed by-the allegation that, letters testamentary were duly issued -to them, and that they duly qualified, to be sufficient. . '

The pleading may also be sustained under' section 532 of the Code of Civil Procedure, which provides that “ In pleading a judgment or other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction, but the judgment or determination may be stated to have been duly given or made.”

The demurrer for improperly joining causes of action is founded upon the argument that a cause of action to recover property or the value thereof improperly transferred within four months before the filing of the petition in bankruptcy has been joined with one for fraud and one for conspiracy.

While isolated sentences in the complaint would be appropriate to an action for damages for fraud or for a conspiracy, yet it is apparent that the effort of the pleader has been simply, under the peculiar facts •of this case, to state facts which, if proven, will be sufficient to set aside the alleged unlawful transfer and to recover from the, defendants the property transferred counter to the provisions of the Bankruptcy Act or the value thereof. That being our view of this complaint, there has been no improper joinder of causes of action, as they .all arise out of the same .transaction or transactions connected with the subject of the action, are consistent with each other and affect all the parties to the action, and do Hot require different places of trial.

Regarding the action, as we do, as one simply for the purpose of setting aside the unlawful transfer of the bankrupt’s property and to recover the same, or the value thereof, for the benefit of his estate, it is within the jurisdiction of this court. (Jones v. Schermerhorn, 53 App. Div. 494; Bankr. Act [30 U. S. Stat. at Large, 564], § 67, subd. e., as amd. by 32 id. 800, § 16; Cook v. Whipple, 55 N. Y. 150.)

The interlocutory judgment should be affirmed, with costs, with usual leave to defendants to answer on payment of costs of demurrer and of this appeal. .

All concurred, except Cochrane,' J., dissenting.

Interlocutory judgment affirmed, with costs, with usual leave to defendant to answer on payment of costs of demurrer and of this appeal.