Bodine v. Williamson

Burr, J.:

The statute provides that a complaint must contain “ A plain and concise statement of the facts constituting each cause of action without unnecessary repetition.” (Code Civ. Proc. § 481, subd. 2.) The complaint in this action covers twenty-six printed pages, and consists of forty-five separate paragraphs. The complaint in another action, which covers eighteen printed pages, is annexed, with a general allegation that a large number of the allegations contained in that complaint (which allegations are specified) are also true. The purpose is to incorporate these as additional allegations in this complaint. This pleading, which contains probative facts, evidentiary facts, conclusions of fact, and conclusions of law, commingled in almost inextricable confusion, has been attacked by a demurrer upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer has been sustained at Special Term, and from the interlocutory judgment entered upon its decision this appeal is taken.

A careful and painstaking examination and analysis of this complaint leads us to conclude that but two questions are involved. First, may a surety upon the official bond of an administrator’, or one standing in the shoes of such surety, maintain an action setting aside the decree of a Surrogate’s Court of competent jurisdiction settling and passing such administrator’s accounts in the absence of fraud leading up to such decree? This court has answered this question in the negative. (Matter of Bodine, 119 App. Div. 493. See, also, Deobold v. Oppermann, 111 N. Y. 531; Kelly v. West, 80 id. 139.) Second, does the complaint contain any allegation of fraud leading up to the decree, which would entitle the plaintiff to relief ? Construing the allegations of the complaint most favorably to the pleader, they are reduced to this: The administrator charged himself in his inventory and in his accounting, and was charged by the decree, with two items with which the plaintiff now says he should not have been charged because, strictly speaking, the property represented thereby had never actually come into his possession. As to one of these at least, it may be a sufficient answer to say that it was his duty to have taken possession of the property and reduced it to cash, and if he failed to do so he might properly be charged with the value thereof. But there is no suggestion that all of the facts in connection with these matters were not fully known to the accounting administrator at the time. It is claimed that through ins own carelessness, or the carelessness or incompetence of his counsel, they were not presented to the Surrogate’s Court, and it is urged that as the next of kin also knew of these facts, they should have seen to it that, notwithstanding the omissions or neglect of the administrator, such evidence was introduced to protect him from an erroneous decree. When parties are dealing, as they were in that case, at arm’s length, and there is no relation of trust and confidence between them, there is no obligation upon either party to reveal to his adversary the infirmities in his own case, or to supply omissions and deficiencies in his adversary’s case. (Ward v. Town of Southfield, 102 N. Y. 293.) There is a further claim that the transfer of the interest of some of the next of kin of Bodine’s intestate to the City Equity Company is champertous. It appears that there is already pending an action by the said company to enforce the claims, of which it is the assignee. One of the purposes of this action is to enjoin the prosecution of it. If the agreement of transfer is champertous, it may be set up as a defense in that action. It is improper to call on a court of equity in a separate action to restrain the prosecution of it. (Pond v. Harwood, 139 N. Y. 111.)

The interlocutory judgment appealed from should be affirmed* with costs.

Woodward, Jenks, High and Miller, JJ., concurred.

Interlocutory judgment affirmed, with costs.