Opinion
10-27-1908
EWALD v. ORTNYSKY et al.
Harry B. Brockhurst, for demurrant. Herbert Clark Gibson, for defendants.
Suit by George Ewald against Sotor Stephen Ortnysky and others. Heard on bill and demurrer thereto of defendant the Little Russian Greek Catholic St. Peter and Paul Church of Jersey City. Demurrer sustained in part.
Harry B. Brockhurst, for demurrant.
Herbert Clark Gibson, for defendants.
LEAMING, V. C. 1. Our statute authorizes the assignment of choses in action, and complainant, under his judgment, may assert all rights which his assignors could have asserted under judgments procured by them on their several claims. But, as a several creditor in a suit of this nature would be compelled to show when his claim originated in order that its status touching the acts complained of could be accurately ascertained, it seems manifest that the assignee of several claims should, for a like reason, show when each claim which forms a part of his judgment originated. The averment that the claims of complainant's several assignors arose between April 30, 1900, and December 18, 1905, without a disclosure as to when and for what amount each claim arose, fails to afford defendant an opportunity to take issue on material facts. Defendant should be privileged to admit the validity of some of the claims of complainant's assignors and to contest the validity of others, and the averments of the bill should be sufficiently definite and specific to afford that privilege. The fact that it appears by the bill that relief may be claimed against some acts which occurred prior to December 18, 1905, evidences the necessity of specific averments of the nature suggested. The demurrer must be sustained so far as it relates to this objection to the bill.
2. The objection to the third paragraph of the bill—asserted by the second ground of demurrer—cannot be sustained. The rule is, as stated in Kirkpatrick v. Cornig, 40 N. J. Eq. 241, that, to determine whether a given averment of a bill is immaterial, it is necessary to consider whether the alleged objectionable part has a tendency to show, or would be admissible in evidence to show, the truth of any allegation in the bill that is material with reference to the relief sought. The averment here complained of is in its essence an averment of the value of the property in controversy, which value is by the bill asserted to be $30,000 and upwards subject to a mortgage of $12,000. This fact may be said to almost necessarily have important bearing upon the ascertainment of the fraud averred by the bill as a primary basis of the relief sought.
3. The rule is well settled that a defendant is entitled to a concise statement of the facts on which a complainant bases his relief, and any fraud relied upon should be specifically disclosed by the bill; but I think that the averments of paragraphs 5 to 15, inclusive, of the bill, when considered together, disclose the existence of conditions which entitle complainant to relief. The averments, summarized, may be said to be that defendant corporation, through the acts of persons wrongfully in charge of its affairs, has been stripped of its real estate without consideration moving to it (see paragraph 15), and without lawful affirmative action upon its part, as the result of an effort upon the part of its members and officers to avoid the payment of the indebtedness due to complainant's assignors. While the averments of the bill could probably be made more specific, I think them sufficient in the respect named.
4. I do not think that the bill discloses laches which will operate as a bar. Paragraph 15 of the bill asserts that the several matters averred were unknown to complainant's assignors, and paragraph 4 asserts that the assignment to complainant was made in 1908.
I will advise that the demurrer be sustained, and that complainant be allowed 20 days in which to file an amended bill.