Opinion
May 10, 1907.
James F. Swanick, for the appellant.
Lawrence E. Brown, for the respondent.
If the situation so permitted we would follow the rule laid down in Baker v. Potts ( 73 App. Div. 29), wherein it is held that it is not of universal application that an execution must be issued and returned as against all the judgment debtors as a condition precedent to an action in equity to reach property fraudulently transferred. The exception to the rule, as there pointed out, is based upon the conclusion of fact that the debt which was the foundation of the judgment was that of the defendant, whose property is sought to be reached, while his codefendant occupied the relation thereto of surety. Conceding the rule sound and to be followed in a proper case, it has no application here. It is in the complaint alleged "that the said judgment was recovered upon debts of the said defendant David McKown, contracted previous to the making of the transfer hereinafter mentioned." It is from this allegation that we are asked to draw the inference that Leary sustained the relation of surety to McKown in contracting the debts mentioned. If Leary and McKown were partners at the time the debts were contracted, and the same were incurred for the benefit of the partnership, it would justify the allegation as a basis of this action that "the said judgment was recovered upon debts of the said defendant David McKown." It would in that case be their joint or several debt. One test of the soundness of this conclusion would result from an attempt to convict the defendant McKown for perjury upon the assignment of a false statement "that the said judgment was recovered upon debts of the said defendant David McKown." It is clear that a conviction could not be had. The verified statement, as a matter of fact, would be true that the debts recovered upon were those of the defendant David McKown. The plaintiff is seeking to have the benefit of an exception to a general rule; he is seeking to be permitted to follow the property in equity of one of two joint judgment debtors without exhausting his legal remedies. This he cannot do in the absence of requisite allegations bringing his case within the exception. In this he has failed. This conclusion makes it unnecessary to pass upon the first ground of the demurrer, except to say that we sanction the rule applied by the learned court below respecting the non-joinder of parties.
The judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.
PATTERSON, P.J., HOUGHTON and SCOTT, JJ., concurred; McLAUGHLIN, J., concurred in result.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.