
    Richard G. Berford, Resp't, v. Demas Barnes, as Assignee and Demas Barnes, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 1, 1887.)
    
    1. Pleading—When a complant states a cause op action.
    The complaint in a certain action alleged that the defendant was appointed assignee in bankruptcy of the estate of two persons named, and accepted the trust; that there was allowed against the estate of his assignors, in favor of one Hare, a certain claim upon'which a dividend was de- , dared,for which defendant received credit in his accounts as such assignee; that the defendant falsely represented to Hare that his claim was disallowed and was barred by the statute of limitations; that the defendant thereafter withdrew the amount of the dividend from the funds of the bankruiits’ estate and mingled the same with his own; that Hare died ia ignorance of these facts, and the claim was thereafter assigned to the plaintiff by the administrator of Hare’s estate; the complaint was demurred to, on the ground that it did not state a cause of action. Held, that the demurrer was properly overruled.
    3. Same—When complaint states but one cause op action.
    
      Held, that there was hut one cause of action set out in the complaint, and that was for the misappropriation of money, and is against the defendant individually; that the words “ as assignee " might be disregarded.
    3. Jurisdiction.
    
      Held, that any court of general jurisdiction had jurisdiction to try the case; that courts of bankruptcy had no exclusive jurisdiction of an action brought for the recovery of such a demand.
    Appeal from an interlocutory judgment entered upon an order overruling a demurrer to the complaint.
    
      Roger M. Sherman, for resp’t; James RL Bill, Wing & Shoudy, for app’lt.
   Dykman, J.

It is charged in the complaint m this action that the defendant was appointed assignee in bankruptcy of the estate of two persons of the name of Vetterlein, and accepted the trust. That there was allowed against the estate of his assignors in favor of Thomas Hare a claim of $1,056.11 upon which there was a dividend declared of $1,125.22 for which the defendant received credit in his accounts as such asssignee. That the defendant falsely represented to Hare that his claim had been disallowed and. was barred by the statute of limitations. That the defendant thereafter withdrew the amount of the dividend from the funds of the bankrupts' estate and mingled the same with his own at his bankers.

That Thomas Hare died in ignorance of his rights and of the transactions of the defendant, and the fraud he had perpetrated, and his widow Matilda Hare was duly appointed the administratrix of Ms estate, and that she first discovered the allowance of the dividend about the first of May, 1885.

That the administratrix assigned the cause of action to the plaintiff about November 9, 1886, and lie has demanded payment of the dividend and interest which was refused, and lie demands judgment for the dividend and interest.

The title of the cause is Bichard GL Berford against Be-mas Barbes, and Bemas Barnes as assignee and the defendant L is demurred to the complaint as assignee and individually, and repeats the same causes of demurrer three different times, and the grounds stated are that the complaint does not state facts sufficient to constitute a cause of action; that the court has no jurisdiction of the supposed cause of action, and that there is a misjoinder of causes of action against the defendant individually and as assignee in bankruptcy.

It is noticeable in the outset that the specifications of the causes of demurrer are quite inconsistent, for if no cause of action is stated in the complaint, then there is no misjoinder of such causes, but that is not very material.

It is charged against the defendant in this complaint that he received the sum of $1,125.22 belonging to Thomas Hare, and which it was his duty to pay over to Hare and mingled the same with his own funds at his bank, and has refused to pay over the same after a legal demand. If those facts are true, as they are for our purpose, they constitute a cause of action against the defendant in favor of the party in interest in any court of general jurisdiction. Courts of bankruptcy have no exclusive jurisdiction of an action brought for the recovery of such a demand. The defendant has received and appropriated money which belonged to another, and the capacity in which he received the same is quite immaterial.

No citation of authority can be required for the fortification of such a position: it is plain common sense and common justice and very common law.

Neither is there any misjoinder of causes of action. There is but one cause of action set out in the complaint, and that is for the misappropriation of money and is against the defendant individually. There is no cause of action stated against the defendant as assignee, and the annexation of the words “as assignee” to the name of the defendant has no legal effect and may be easily disregarded. Besides all' this the demurrer is not for a misjoinder of parties

Demás Barnes is the defendant and the complaint sets out a valid cause of action against him, and the supreme court has sufficient jurisdiction to entertain the action.

The judgment and order appealed from should be affirmed, with costs.

Barnard, P. J., concurs.

Pratt, J.

No want of capacity on the part of the plaintiff to sue appears upon the face of the complaint, and that is, therefore, not available as a ground of demurrer.

The trust in respect to the chose in action mentioned in the complaint devolved upon the administratrix of Thomas Hall by operation of law and was duly assigned to the plaintiff, who is a proper party. Boone v. Savings Bank, 84 N. Y., 83. Rogers v. Squire, 26 Hun, 388.

That the court has jurisdiction of the parties is well settled by authority. The suit is against an assignee in bankruptcy to recover a dividend declared by a bankruptcy court, which it is alleged the assignee has withdrawn from the funds of the estate after he has claimed and received credit for the payment of the dividend. Such a suit is clearly within the adjudicated cases. Eyster v. Gaff, 91 U S 521-525; Cook v. Whipple, 55 N. Y., 150.

The point that there is a misjoinder is not weE taken.

The complaint is in equity and names the party who holds the legal title to the fund as well as the person who has interfered with the trust Assuming, therefore, that Bemas Barnes, as assignee, is one person, and Bemas Barnes individuaEy, is another, both are properly named in the complaint in order that the decree may bind Mm in both capacities. Story’s Equity Pleading, 9 ed., § 528, 431; James v Cowiny, 17 Hun, 269.

Both demurrers are to the entire complaint, and it foEows it should be overruled if either of the causes of action are weE pleaded. Haight v. Brisbin, 36 Hun, 582.

It cannot be said that no cause of action has been stated in the complaint when the defendant has asserted by his demurrer for misjoinder that two well-pleaded causes of action are improperly joined. Sullivan v. N. Y, N. H and H. R. R., 1 Civil. Pro., 285.

But one cause of action only is stated in the complaint. One fund alone is sued for, and a judgment of accounting for a specified sum of money demanded. In any view of the case the judgment against Bemas Barnes, individuaEy, should be affirmed.

But, technically, as well as upon the merits, we think the decision below was right.

Judgment affirmed, with costs.  