Otis v. Shantz
| Decision Date | 02 June 1891 |
| Citation | 128 N.Y. 45,27 N.E. 955 |
| Parties | OTIS et al. v. SHANTZ. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fifth department.
Myron T. Bly, for appellant.
Henry H. Mill, for respondents.
The plaintiffs do not sue to enforce any obligation under the ‘Agreement in Liquidation.’ The action is upon notes given for property purchased by the defendant of the trustees after they had assumed the trust. The first court in the answer alleges that the defendant was induced to become a party to the liquidation agreement by fraudulent representations made by the Mill River Button Company, its agent, officers, and directors, and asks for judgment setting aside and canceling as to him the agreement. This answer was not a defense. The agreement was between the corporation, the creditors, and the trustees. The proper parties are not represented in this litigation, to entitle the defendant to judgment upon this issue. Neither the corporation nor the other creditors are before the court, and both have an interest and are entitled to be heard on the adjudication of this question. Moreover, fraud in procuring the execution of the agreement by the defendant would constitute no ground for exempting him from the performance of an independent contract entered into between him and the trustees subsequent to the execution of the agreement in liquidation, and founded upon a new consideration. The first answer was clearly insufficient, because, admitting its averments, the defendant would be entitled to no relief.
The 2d, 3d, 4th, and 5th answers are founded upon alleged counter-claims. They all set up transactions between the Mill River Button Company, its officers and agents, and the defendant, which took place prior to the execution of the liquidation agreement. The second answer seeks to counter-claim damages alleged to have been sustained by the defendant, arising from the fraud and deceit of the corporation, connected with an advance of money made by the defendant to the corporation. The third answer counter-claims damages alleged to have been sustained by the defendant by the fraudulent refusal of the corporation to perform its contract to deliver a portion of its capital stock to the defendant in consideration of money advanced by the defendant. The fourth answer alleges an indebtedness of the corporation to the defendant in the sum of $2,800 for money loaned. The fifth answer alleges a violation by the company of a contract of employment, whereby the defendant sustained damages in the sum of $3,000. The defendant in his answer does not ask any affirmative judgment on his counter-claims, but as to each he asks simply that he be permitted to set off...
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Quittner v. Los Angeles Steel Casting Co., 13230.
... ... Metropolitan Finance Corp., 9 Cir., 1950, 180 F.2d 132, certiorari denied, 339 U.S. 980, 70 S.Ct. 1027, 94 L.Ed. 1384 ... 2 Otis v. Shantz, 1889, 55 Hun. 603, 8 N. Y.S. 293, affirmed 128 N.Y. 45, 27 N.E. 995; James v. McPhee, 1887, 9 Colo. 486, 13 P. 535; Capehart v. Etheridge, ... ...
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Lignacraft, Inc. v. Automation Services, Inc.
...which did not exist at the time of filing, as this would result in the defendant's obtaining an inequitable preference. (See Otis v. Shants, 128 N.Y. 45, 27 N.E. 955.) Furthermore, defendant's claim is barred at law by virtue of discharge in bankruptcy of the original debt. (11 U.S.C.A. §§ ......