Holmes v. Abbott , 60 N.Y. Sup. Ct. 617 ( 1889 )

Hardin, P. J.

Subdivision 9, § 484, Code Civil Proc., contains the substance of subdivision 1, § 167, Code Proc., which was said by Comstock, J., in Railroad Co. v. Schuyler, 17 N. Y. 592, to be “well chosen for the purpose intended, because it is so obscure and so general as to justify the interpretations which shall be found most convenient and best calculated to promote the ends of justice.” In Wiles v. Suydam, 64 N. Y. 178, Church, C. J., says of it, viz.: “There is certainly ample scope for construction, but it is sometimes difficult to determine what interpretation will best promote the ends of justice. It is probable that the primary purpose of this provision was intended to apply to equitable actions, which frequently embraced many complicated acts and transactions relating to the subject-matter of the action, which it would be desirable to settle in a single controversy.” In the case in hand it is averred that Lewis, the incompetent person, over whose estate the plaintiff has been appointed a committee, is insolvent, and that the various persons named as defendants are interested, or claim to be interested, in the property which, by virtue of the appointment of plaintiff, came into his care and custody. To ascertain the extent of the interest of Lewis in the property, and, incidentally, the validity and extent of the liens thereon held by his respective creditors, is the purpose and scope of the complaint. In short, the property which has come into the custody of the plaintiff, and which, as committee or trustee, he holds, is the “subject of action.” Id. Whether any of the claims of the defendants are prior to the lien and interest of the plaintiff will be determined in the action, and properly so. Bank v. Flagg, 3 Barb. Ch. 316; Brown v. Volkening, 64 N. Y. 83. Plaintiff seeks to ascertain the extent of property or fund, and, in doing so, to have investigated the several claims thereto, and liens thereon. In Garner v. Thorn, 56 How. Pr. 458, it was said: “The cause of action consists in the several violations and misappropriations which the trust-estate has suffered in passing through the hands of the various defendants, and with which they have been more or less connected. The restoration and preservation of the trust fund is the primary and important subject-matter of the action.” The reasoning and cases cited in the opinion from which the quotation just given is taken support the conclusion reached at the special term. We do not deem it needful or important to add anything further to the opinion delivered by the special term in overruling the demurrers. Judgment affirmed, with costs, with leave to the defendants to withdraw their demurrers and answer upon payment of the costs of the demurrers and of the appeal.

Martin, J., concurs. Merwin, J., not sitting.