5 Bosworth Super. Ct. Rep. 666

John A. C. Gray et al., Plaintiffs and Appellants, v. Isaac Kendall et al., Defendants and Respondents.

1. Where an action is brought by several creditors of a limited partnership, as plaintiffs, against the members of such partnership and their general assignee, under an assignment made for the benefit of creditors, to remove such assignee, procure the appointment of a Receiver, and compel a distribution of the assets, and the complaint merely states that one of such plaintiffs is a creditor in a sum specified, on several promissory notes of said firm made before the execution of said assignment,” and that another plaintiff is “ a creditor in the sum of $1,900 and upwards,” the complaint will be ordered to be made more definite and certain, so as to state the several causes of action as particularly as is requisite in an action to recover a judgment in personam for the same causes of action.

2. Where several persons not united in interest join as plaintiffs in an action, the complaint to be verified as the Code requires, must be verified by the oaths of the plaintiffs severally, who are not united in interest.

Before Bosworth, Oh. J., and Woodruff and Monorief, J. J.)

Heard, December 10;

decided, December 17, 1859.

This is an appeal by the plaintiffs from an order requiring their complaint to be made more definite and certain, and as amended to be verified by the plaintiffs severally who are not united in interest. This action is brought by three several creditors (hereinafter named) of the late limited partnership of “ Ely, Bowen & McConnell,” and is brought on behalf of the plaintiffs and all other creditors of that partnership who shall come in and contribute to the expenses of this action.

It is brought against all of the members of said limited partnership, and also against Isaac Kendall, to whom said partners have assigned all the partnership property in trust for the benefit of the creditors of the partnership, without preferences.

The action is brought to remove the assignee and obtain from him an account as such, and to procure the appointment of a Receiver to convert and distribute the property of the partnership among its creditors.

The complaint states that the plaintiff, John A. C. Gray, is a creditor of said partnership “ for the sum of $50,000 and upwards, *667on several promissory notes of said firm, made before the execution of said assignment.

“ That the plaintiffs, William 0. Haggerty and. Ogden Haggerty, are creditors of said Ely, Bowen & McConnell, in the sum of $1,900 and upwards.

“ That the plaintiff, David Wagstaff, is a creditor of said Ely, Bowen & McConnell, in the sum of $9,000 and upwards, on several promissory notes of said Ely, Bowen and McConnell, made before the execution of said assignment.”

The complaint is verified by the affidavit of John A. C. Gray alone.

On the 11th of November, 1859, an order was made by Mr. Justice Slossok, requiring the- complaint to be made-more definite and certain in its statements of the nature and particulars of the alleged indebtedness of the limited partnership to the several plaintiffs, and that it be amended so as to state when and for what such indebtedness was contracted, and the dates and particulars of any notes given on account thereof, or that copies of such notes be set forth, and providing that the complaint, when so amended, be verified by each class of plaintiffs, or if that be not done, that the defendants be at liberty to serve an unverified answer. From that order the present appeal is taken.

H. Smales, for appellants.

I. The fact that the plaintiffs are creditors of the assignors is the only material fact; the precise amount of the debts and the particulars required by the order are wholly immaterial.

1. The amendment would render it necessary to set forth over sixty promissory notes, besides other matters, making the complaint double its present length, while the production of a single note (held by each creditor) on the trial, or proof of any portion. o'f his debt, would be sufficient to sustain this part of the plaintiffs’ case.

2. The amendment would tender a large number of immaterial issues, and burdei^ the defendants with the necessity of taking issue on them.

3. If all the particulars required by the order had been inserted in the complaint, the Court, on defendants’ motion, would have stricken them out as redundant.

*6684. The question is, not the amount of indebtedness, or its nature, but the simple fact whether or not the plaintiffs are creditors.

5. The statements as to Gray and Wagstaff (at least) are sufficient. They are stated to be creditors on “ several promissory notes of the assignors made before the assignment.”

6. If the particulars are required to enable the defendants to go to trial, they could be obtained by a bill of particulars, without burdening the record with useless averments.

II. It is sufficient for one of several parties, “ united in interest and pleading together,” to verify a complaint.

There are several decisions that, where defendants have separate and unconnected defenses, as in case of action against maker and indorsers of a note, &c., each must verify the answer; but no case has been decided requiring a complaint to be verified by more than one of the plaintiffs.

1. The object of verification of a complaint is to insure its general truthfulness and bona fides, not the absolute verity of each fact alleged.

It may be made by an agent whollv on information and belief, or by the attorney, in case of absence of the party from the county in which the former resides.

2. The plaintiffs are united in interest ” in the subject matter of the action; therefore, by the Code, the verification by one is sufficient.

'3. The order, in this respect, is wholly unsupported by authority, and contrary to the practice from the first passage of the Code.

4. The mode of verification is directed by the statute, and cannot be varied by order of a Judge. In this case, should either of the plaintiffs, Gray or Wagstaff, be absent, a verification by all the other plaintiffs would not be within the Judge’s order, and might be disregarded. v The order appealed from should be vacated.

Geo. W. Parsons, for respondents.

I. Where defects in a complaint are not of such a substantial nature as to be available under the ground of demurrer, that it does not state facts sufficient to constitute a cause of action, the *669remedy is by motion, under section 160, to strike out or make the faulty pleading more definite and certain.

Such proceeding has taken the place of demurrer for want of form. (Prindle v. Caruthers, 15 N. Y. R., 425.)

1. It is claimed that the Code requires not merely true propositions to be stated, but physical facts, capable as such of being established by evidence, oral or documentary, and leave it for the Court to draw the conclusion of law. (Lawrence v. Wright, 2 Duer, 674, [Duer, J.;] Corey v. Mann, 14 How. Pr. R., 164; White v. Brown, id., 284; Code, § 142, subd., 2.)

2. Also, that every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly stated. (Allen v. Patterson, 3 Seld., 478; Eno v. Woodworth, 4 Comst., 249; Page v. Boyd, 11 How. Pr. R., 415; Howard v. Tiffany, 3 Sand., 695; Adams v. Holley, 12 How. Pr. R., 326; Thomas v. Desmond, id., 321.)

II. Judged of by the above rules, the complaint is clearly defective in not stating all the facts which constitute the several causes of action, which enable the plaintiffs to maintain such an action against defendants.

1. It is not disputed that it is necessary that plaintiffs should severally be creditors to have a standing in Court in such an action.

2. How, then, can they escape the necessity of making proper averments of facts which will enable the Court to conclude, as matter of law, that they are creditors ? Must they not, if disputed, prove facts which show them to be creditors ? If so, then the rule established by the Court of Appeals, in the case of Allen v. Patterson, (3 Seld., 478,) applies. This says: “Every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred or stated.”

3. If this be true as to one of the claims, it must be true as to all of them, and it is not sufficient, as plaintiffs seemed to suppose on the argument at Special Term, to show one valid claim belonging to each plaintiff constituting him a creditor.

(a.) It is admitted that the ownership of any valid claim over $100 by the plaintiffs severally, would entitle them to bring this *670action, but having made claim to be creditors in certain specified amounts, they are bound to state facts which show them to be creditors in the amount stated.

4. The question whether they are creditors or not, is one upon which the defendants have a right to take issue; and it is impossible for them to do this without the averments required to be made by the order of the Special Term.

III. It was necessary that the complaint should be verified by or on behalf of each class of plaintiffs.

1. The plaintiff who did verify the complaint, could not possibly know that the allegations in the complaint, touching the claims and rights of his co-plaintiffs, were true, and we have a right to purge the conscience of each plaintiff or class of plaintiffs.

2. If their complaint is to be treated as a verified complaint, the oaths of the plaintiffs, several in interest, should be upon the record.

3. It has been repeatedly held that when different parties to a promissory note are sued together, under the statute, even if the parties have a common defense and join in their answer, the pleading must be verified by all the parties. (Hull v. Ball, 14 How. Pr. R., 305 ; Andrews v. Storms, 5 Sand., 609; Youngs v. Seely, 12 How. Pr. R., 395.)

The remedy by motion was the proper one, and the order of the Special Term should be affirmed, with costs.

By the Court—Bosworth, Ch. J.

This action cannot be maintained unless the plaintiffs were, or unless some one of them was a creditor of the limited partnership of Ely, Bowen & McConnell at the time the action was commenced.

The allegations employed to show that they were such creditors, should be sufficiently definite and specific to inform the defendants when, in what manner, and by what contracts of said firm, it 'is claimed that they became indebted to the plaintiffs severally, and in what amount.

It is as important in a suit like the present, as in one brought to recover a judgment in personam, that these particulars should be stated in order that the defendants may set up by answer that said alleged demands have been paid or settled; or if no such demands ever existed,, that issues may be formed by the plead*671ings, which will show what claims must be proved to establish the fact that the plaintiffs were severally creditors when this action was commenced.

This will not subject the plaintiffs to any inconvenience which is not common to all plaintiffs who institute an action and claim relief on the ground that the defendants, or some of them, are their debtors.

To allow the plaintiffs, in the present case, to state less than this in their complaint, will expose the defendants to the hazard of having notes made by them, produced and offered in evidence at the trial, which the plaintiffs do not now own, or to which there may be a good defense, without its being in their power'to establish these facts, and that solely because the complaint does not enable them to know what are the notes or causes of action which the plaintiffs intend to prove, to show that they are such creditors as the complaint alleges.

We know of no rule of pleading, nor of any precedent, which sanctions a complaint like the present, in respect to that portion of it to which the order appealed from relates.

In respect to so much of the order as relates to the verification of the amended complaint, it is sufficient to say that the same rule applies to that as to an answer.

When any pleading is verified, “ it must be by the affidavit of the party, or if there be several parties united in interest and pleading together, by at least one of such parties acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit.” (Code, §§ 156,157, [138, 134.])

It is provided by statute that whenever in any statute any “ party or person is described or referred to by words importing the singular number,” several persons shall be deemed to be included. (2 R. S., 1st ed., 778, § 11)

When the Code requires the verification to be made by the affidavit of the party, it requires the affidavit to be made by every party who unites in such pleading, whose interest is several. If this be not done, the adverse party should not be required to treat it as a pleading verified as the Code requires.

This rule has been applied to answers in which several persons not united in interest have joined. There is no reason why *672it should not be applied to a complaint in an action commenced by several persons as plaintiffs, who are not united in interest. At all events, the Code does not discriminate between them, but on the contrary applies the same rule to both.

The order should be so modified as not to require any of the plaintiffs, whose demands consist, in whole or in part, of promissory notes made by the limited partnership, to do more in respect thereto than to describe such notes accurately or to set forth copies of them. In other respects it should be affirmed. Order affirmed.

Gray v. Kendall
5 Bosworth Super. Ct. Rep. 666

Case Details

Gray v. Kendall
Decision Date
Dec 17, 1859

5 Bosworth Super. Ct. Rep. 666

New York



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