Herrup v. Stoneham

• Decision Date: 18 October 1926
• Docket Number: No. 19.,19.
• Citation: Herrup v. Stoneham, 15 F.2d 49 (2nd Cir. 1926)
• Parties: HERRUP v. STONEHAM et al.
• Court: U.S. Court of Appeals — Second Circuit

15 F.2d 49 (1926)

HERRUP v. STONEHAM et al.

No. 19.

Circuit Court of Appeals, Second Circuit.

October 18, 1926.

Leo J. Bondy, of New York City (Charles H. Tuttle and Murray C. Bernays, both of New York City, of counsel), for appellants.

Kohlman & Austrian, of New York City (Carl J. Austrian and Saul Lance, both of New York City, of counsel), for trustee.

Before HOUGH, MANTON, and HAND, Circuit Judges.

PER CURIAM.

The facts recited show that the trustee in bankruptcy does not think plaintiff has a cause of action against him, and plaintiff agrees with the assertion. The order complained of amounts to no more than a consent order of discontinuance as to the trustee. Why or how the persons, whom the plaintiff wishes to sue and has sued, can assert a right to keep the trustee as a defendant is hard to see.

A plaintiff can sue whom he likes at his peril; if he sues the wrong people, or too many or too few people, so much the worse for him. In this case, if Stoneham et al. think the plaintiff's bill fails because too few are sued — i. e., because the trustee is left out — they can advance that defense by answer (equity rule 29), and when and if final decree goes against them they can on appeal complain of the nonjoinder of the trustee.

But this consent discontinuance is wholly interlocutory; it is not a "final decision," within Judicial Code, § 128 (Comp. St. § 1120). To be appealable, the decision or order must be "not only final, but complete," and final, "not only as to all the parties, but as to the whole...