Delano v. Ives, 1233.
| Decision Date | 15 July 1941 |
| Docket Number | No. 1233.,1233. |
| Parties | DELANO, Comptroller of the Currency, v. IVES (BOTFIELD et al., Third Party, defendants). |
| Court | U.S. District Court — Western District of Pennsylvania |
Samuel E. Kratzok, of Philadelphia, Pa., for Delano.
Conlen, LaBrum & Beechwood, by Geo. E. Beechwood, all of Philadelphia, Pa., for Ives.
James E. Gallagher, Jr., of Philadelphia, Pa., for Blanche P. Botfield, etc.
Thomas J. Clary and Richard A. Smith, both of Philadelphia, Pa., for Willing, etc.
Samuel E. Kratzok, of Philadelphia, Pa., for Root and Reed.
James H. Young, of Philadelphia, Pa., for Wheatley, etc.
The plaintiff as Comptroller of the Currency brought this suit against Norman C. Ives, who was conservator of the defunct Sixth National Bank of Philadelphia from March 14, 1933, until September 29, 1934. The cause of action was non-performance, or negligent performance, of the defendant's statutory duties, in that he (a) negligently paid a dividend to depositors who were obligated to the bank, without setting off obligations which they owed the bank, (b) permitted withdrawals constituting preferences, by certain depositors, and (c) negligently made payments to certain depositors and creditors not entitled to any payment.
The defendant filed an answer denying the essential averments of the complaint and setting up the additional defenses of statute of limitations, laches, and estoppel. Subsequently he filed two third party complaints. The first sought to bring in as third party defendants the four receivers of the bank who served successively from the time that the defendant was superseded until the date of the suit. Two, Botfield and Willing, are dead, and their executors are the parties sued. The third, Root, served from June 4, 1938, to October 17, 1939, and the fourth, Reed, from the last mentioned date until the present time. The second third party complaint sought to bring in the executors of Walter Wheatley, to whom the greater part of the alleged preferential payments were alleged to have been made.
Taking up first the third party complaint, against the receivers: The allegation as to each is that he negligently and in disregard of his statutory obligation failed to act to recover the illegal payments, if any, made by Ives, with the result that recovery against the recipients has become barred by limitations or laches, or impossible because of insolvency, death or dissipation of their assets. The third party complaint concludes (a) that the receivers (and the executors of those deceased) are liable directly to the Comptroller of the Currency, (b) that they are liable to the defendant, Ives, by way of indemnity for the amount of any recovery which the plaintiff may have against him, and (c) that they are liable to the defendant, Ives, by way of contribution to any such recovery.
The plaintiff has filed motions to dismiss the third party complaints as to the present receiver, Reed, and the Wheatley Estate. Each of the third party defendants has also moved to dismiss.
Inasmuch as leave to file the third party complaints has already been granted by the Court "without prejudice to any of the parties to file any motions in due course," the plaintiff requests that his motion to dismiss be treated as a motion to vacate the order granting leave, and to strike the complaint, and the motions to dismiss will be so treated. It has been held (McPherrin v. Hartford Fire Ins. Co. Phœnix Ins. Co., D.C. Neb., February 14, 1940, 1 F.R.D. 88) that leave to file a third party complaint is discretionary with the Court. Beyond this, however, I think that this complaint must be dismissed as a matter of right to the moving parties.
There is no doubt that the third party complaint states a cause of action in favor of the plaintiff, the Comptroller, directly against the four succeeding receivers of the bank. But the weight of authority is to the effect that a defendant cannot compel the plaintiff, who has sued him, to sue also a third party whom he does not wish to sue, by tendering in a third party complaint the third party as an additional defendant directly liable to the plaintiff. See Satink v. Township of Holland (Lehigh Valley R. Co.), D.C. N. J., February 7, 1940, 31 F.Supp. 229. In Sklar v. Hayes (Singer v. Hayes), 1 F.R.D. 594, Judge Bard of this Court allowed the third party complaint, but only after sustaining the plaintiff's amendment charging direct liability against the third party defendant. In another case, Sussan v. Strasser, D.C., 36 F.Supp. 266, Judge Kalodner allowed it to stand because under the third party complaint a joint tort with contribution might have developed.
In the present case, the third party complaint does not charge or suggest concert of action between Ives and the subsequent receivers. The liability pleaded is clearly not that of joint tort feasors. See Betcher v. McChesney, 255 Pa. 394, 100 A. 124. So far from amending his complaint to assert the direct liability of the receivers to...
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...of Hartford, Conn. v. Providence Washington Ins. Co. (N.D.Ohio 1945) 8 Fed.Rules Serv. 14a.513, Case 3. In Delano v. Ives (E.D.Pa. 1941) 40 F.Supp. 672, the court said: ". . . the weight of authority is to the effect that a defendant cannot compel the plaintiff, who has sued him, to sue als......
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...of Hartford, Conn. v. Providence Washington Ins. Co. (N.D.Ohio 1945) 8 Fed.Rules Serv. 14a.513, Case 3. In Delano v. Ives (E.D.Pa. 1941) 40 F.Supp. 672, the court said: ". . . the weight of authority is to the effect that a defendant cannot compel the plaintiff, who has sued him, to sue als......