Staders v. Soutter

• Decision Date: 14 April 1891
• Citation: 27 N.E. 263,126 N.Y. 193
• Parties: STADERS v. SOUTTER et al.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 193

27 N.E. 263

STADERS

v.SOUTTER et al.

Court of Appeals of New York.

April 14, 1891.

Appeal from supreme court, general term, first department.

Lewis Sanders, for appellant.

Delos McCurdy, for respondents.

O'BRIEN, J.

On the trial of this action, at the special term, the plaintiff's complaint was dismissed, as to the defendants, Agnes Gordon Soutter and William K. Sourtter, as executrix and executor of the will of James T. Soutter, without taking any proof, but on motion of their counsel that the complaint did not state a cause of action against them. This appeal, therefore, renders it necessary for us to examine the complaint for the purpose of determining whether it was so defective, in the allegation of facts, as to warrant the trial court in disposing of the case upon a motion to dismiss, based upon an inspection of the pleading alone. A cause of action will be deemed to be stated in a complaint whenever the requisite allegations can be fairly gathered from all the averments, though the statement of them may be argumentative, and the pleading deficient in technical language. Zabriskie v. Smith, 13 N. Y. 322. The rule that justifies the dismissal of a complaint for want of sufficient facts stated was laid down by this court in Marie v. Garrison, 83 N. Y. 14, 23: ‘A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts alleged, it presents no cause of action whatever. It is not sufficient that the facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that the material facts are only argumentatively a verred. The complaint, on demurrer, is deemed to allege what can be implied from the allegations therein, by reasonable and fair intendment, and facts impliedly averred are traversable in the same manner as though directly averred.’

The complaint in this case covers 10 closely-printed pages of the record, and it deals throughout with what appears, on paper at least, to be weighty and important matters. The precise lines upon which the plaintiff intends to try the case have not been very ciearly or distinctly drawn, and the complaint in some respects is wanting in that definiteness and degree of particularity essential to a complete and logical statement of cause of action. The complaint can be examined in three aspects, and if, upon any view that can be taken of it, sufficient facts can be gathered from the averments to sustain any cause of action whatever, the judgment cannot be sustained. In so far as the statement of the plaintiff's case can be treated as an action to create and enforce a lien in his favor, as an attorney, the complaint is, no doubt, fatally defective. Randall v. Van Wagenen, 115 N. Y. 527, 22 N. E. Rep. 361. It is apparent, however, that such was not the purpose or theory of the action. The plaintiff cannot sustain the complaint except upon the theory that it states an independent cause of action in equity to annul and set aside a release, made between his assignor and the representatives of the estate of James T. Soutter, which is alleged to be collusive, and to have been made to defraud him of his rights under the assignment, and by force of which he was turned out of the surrogate's court, where he was seeking to enforce his claim, and the proceedings dismissed; or that the case is one by a party interested in the estate of James T. Soutter, as the assignee of a legacy or share of the estate, to call the executors to account in a court of equity, under its concurrent jurisdiction, when special obstacles and embarrassments to such a proceeding in the surrogate's court are shown to exist; or for relief on both these grounds. The complaint alleges that Robert Soutter died July 18, 1873. That he left a will, in which he disposed of his property, which was duly admitted to probate. By this will his widow, who subsequently remarried, and in the pleadings in this case is known as the Duchess D'Auxy, became entitled to all his household furniture, and one-half of the residue of his real and personal property, forever. It is then alleged that the plaintiff became the owner of her interest in her husband's estate by assignment for value received, dated on or about August 17, 1887, except the household furniture. It is true the complaint does not state in terms what property was embraced in or covered by the assignment to the plaintiff, not what estate the Duchess D'Auxy had at the time of the assignment, nor even what property her husband had at the time of his death, but it does state some other facts from which it may be reasonably implied or inferred that, by the assignment, an interest was transferred to the plaintiff which he is entitled in some form of proceeding to enforce. It is alleged that on the 8th day of February, 1873, James T. Soutter, the father of Robert, died leaving a will, which was admitted to probate by the surrogate of Ulster county. That he left an estate of more than $1,100,000, one-tenth of which, by the will, was given to Robert, the husband of the Duchess D'Auxy, plaintiff's assignor; that the defendants Agnes Gordon Soutter, the widow, and William K. Soutter, one of the sons, qualified and were appointed executors of this will; that the widow took no active part in the management of the estate, but intrusted the same to her son, the other executor, whose management she approved; that the son was engaged in business with another party as bankers and brokers, and that on the 28th of September, 1885, they failed, owing upwards of $2,000,000, and having less than $500,000 assets; that the executors were directed by the will to pay over in kind, in proper divisions to his legatees, the state and other bonds comprising a large portion of his estate. The complaint then states various acts of the executors of James T. Soutter and the executors of Robert Soutter, acting together and in collusion, whereby about $800,000 of the funds of the estate of James T. Soutter were appropriated to their own use and lost, and that one Porter, the executor of Robert Soutter, obtained his discharge without having collected or reduced to his possession the share of Robert in his father's...