
    SIMMONS a. ELDRIDGE.
    
      Supreme Court, Third District;
    
    
      General Term, May, 1865.
    Pleading.—Liberal Tests of Sufficiency.
    Under the liberal rules of pleading established by the Code of Procedure, a complaint should not be dismissed upon the trial because it is indefinite or uncertain, or contains irrelevant or redundant matter.
    Allegations of a complaint in a creditor’s 'action held sufficient under this rule.
    
    Appeal from a judgment.
    This action, which was brought by Anthony Simmons, as executor of the will of Elisha Eldridge, against Clinton Eldridge, and Henry and Betsey Moyer, was referred to a referee, who upon the opening of the trial, before any evidence had been adduced, dismissed the cause upon the ground that there was no cause for action. From the judgment entered thereon, the plaintiff appealed.
    
      
       The following recent decisions still further illustrate the requisities of complaints in creditors’ actions:
      In an action by a creditor having only a general lien by his judgment, to set aside a prior judgment alleged to have been, paid, but fraudulently kept on foot, it is not necessary to allege the issue of an execution to the county where the lands lie: execution unsatisfied in the county where the debtor resides, is enough. (Shaw a. Dwight, 27 N. Y., 244.)
      In an action against an insolvent partnership, to compel a fraudulent assignee to account as trustee, it is necessary to allege the issue and return of an unsatisfied execution. (Dunlevy a. Tallmadge, 32 N. Y., 468, reversing S. C., 18 Ante, 48.)
      If a fund sought to be reached is alleged in a complaint as a legacy to the debtor, but is held by the court, upon a just construction of the will in question, to be a legacy to executors in trust to apply income to the debtor’s use, the plaintiff cannot reach surplus income. The allegations of his complaint preclude such relief. (Genet a. Beckman, 26 N. Y., 35.)
      As to the necessity of setting out facts showing fraud or collusion, where fraud or collusion is set up, see Culver a. Hollister, 17 Ante, 405.
    
   By the Court.—Ingalls, J.

It appears from the report of the referee, that he disposed of the case upon the opening of the counsel for the plaintiff, without evidence. It also appears that the plaintiff’s counsel in such opening stated the facts more minutely, but substantially as alleged in the complaint in this action. The only question presented upon this appeal is, whether there are facts stated in the complaint which entitle the plaintiff to give evidence in support of a cause of action therein alleged.

The complaint alleges that the plaintiff, in 1859, was duly appointed executor of the will of Elisha Eldridge, deceased; that in March, 1860, the plaintiff, as such executor, recovered a judgment in the Supreme Court against the defendant Clinton Eldridge, for moneys paid by the testator as his indorser, &c., amounting to $451.31; that execution was duly issued, and returned unsatisfied; that $451.31, with interest, was still due on. the judgment when the action commenced; that by the foreclosure of a mortgage, the legal title of said Clinton Eldridge to certain real estate was divested for the purpose of placing the same beyond the reach of his creditors, and beyond the reach of the plaintiff’s judgment, and enabling the said Clinton Eldridge to control the same and the avails thereof. The complaint also-contains this further allegation; “And the said plaintiff further says, that the said Clinton Eldridge has property personal and interest in property real in the sum of over $7,000, held in trust, or controlled for him, by the said Betsey Moyer and Henry Moyer, by a colorable fraudulent transfer of his property to the said Betsey and Henry Moyer, for the purpose of placing the same beyond the reach of the claims of his creditors, and enabling him to enjoy the avails thereof.” The relief demanded in the complaint is, in substance, that the said •property be applied to the payment of the plaintiff’s judgment, &c. The plaintiff duly excepted to the decision of the referee dismissing the complaint.

I am of opinion that the referee erred in dismissing the complaint. The sufficiency of this complaint is to be determined, not according to the strict" rules of pleading which existed previous to the Code, but in the light of the more liberal system introduced by the Code. Section 140 of the Code provides, “ All forms of pleading heretofore existing are abolished,” &c. In Jordan Plankroad Co. a. Mallory (23 N. Y., 553), Denio, J., says: “ In pleading under the Code, it is sufficient to state the facts from which the law infers a liability, or implies a promise.” In Wright a. Hooker (10 N. Y., 51, 59), Edwards, J., says: “ The very object of the new system of pleading was to enable the court to give judgment according to the facts stated and proved, without reference to the form used or to the legal conclusion adopted by the pleader.” In Zabriskie a. Smith (13 N. Y., 322, 330), Dehio, J., remarks: “Under our present system of' pleading, I conceive that a pleading should contain the substance of a declaration under the former system. It is sufficient, however, that the requisite allegations can be fairly gathered from all the averments of the complaint, though the statement of them may be argumentative,, and the complaint deficient in technical language.” (See also Emery a. Pease, 20 N. Y., 62.) In Butterworth a. O’Brien (37 Barb., 192; S. C., 24 How. Pr., 440), Ingraham, J., says: “ In fact, under the late decisions in the Court of Appeals, we are not to pay any attention to forms, if we can find in the complaint any allegations which, under any view of them, may give the plaintiff a right-* to recover.” In the last case the referee dismissed the complaint, and the judgment was reversed.

I think it quite apparent that the facts above stated present a-cause of action, and, if sustained by evidence, would entitle the plaintiff to recover. There is alleged the existence of a debt, the recovery of judgment, the issuing and return of execution, the transfer of property of the judgmént debtor, with intent to remove, the same beyond the reach of the creditors of Eldridge, and beyond the reach of plaintiff’s judgment, yet placed in such a situation as to enable Eldridge to control the same, and enjoy the avails thereof.

The law would be lame, indeed, if upon such a state of facts a judgment creditor could be prevented from reaching the property of the judgment debtor. It is not a fatal objection to a complaint, upon a motion to dismiss the same, that it contains matter which is irrelevant or redundant, or that the allegations of the pleading are indefinite or uncertain. Such defects are to be remedied by motion under section 160 of the Code. (Moyer a. Van Collen, 28 Barb., 230, 233.)

The judgment must be reversed and a new trial ordered, with costs to abide the event. 
      
       Present, Hogeboom, Peckham, and Ingalls, JJ.
     