Cook & Kane v. Mancius & Visscher , 3 Johns. Ch. 427 ( 1818 )

The Chancellor.

The substance of the plea is, that the bill does not contain proper parties, and it discloses facts showing that there are judgment creditors interested in the surplus moneys, and who have a prior claim to that of the plaintiffs. The plea only states the facts from which we are to infer that further parties are necessary, and then, instead of saying affirmatively, that additional parties are necessary, the defendants say they are not bound farther to answer, and plead those facts in bar. Such a plea was held to be informal, and leave was given to amend it, in Merrewether v. Mellish. (13 Ves. 435.) But in that case the parties were not named at all. Here the prior judgment creditors are named, and the objection would seem, then, to be confined to the mere want of form in not stating, in so many words, that those judgment creditors are necessary parties. This I do not think material, and that branch of the plea is, therefore, good. But the preceding part of the plea sets forth the decretal order for the sale of the mortgaged premises, and the proceedings by the Master. This is distinct matter, and contrary to the rule of pleading, which will not allow multifarious matter in one plea, but requires that the defence in a plea should rest on a single point. If the object of this was to show that Ostrom, the plaintiff in the suit upon the mortgage, ought also to have been a party, there was no necessity for stating all the proceedings by the Master. The fact might have been briefly stated, without incumbering the plea with such a detail of matter, and which must have been inserted for other purposes than merely to show that Ostrom ought also to have been a party. Nor was it necessary that Ostrom should have been a party to this suit, for he cannot be affected in interest, since the object of the suit is only to procure the surplus- moneys arising upon the sale, and with which Ostrom can have no concern. He is hot charged with any act whatever that is put forward as a ground for relief.

But though the plea be censurable for the multifariousness of its matter, it nevertheless discloses a fatal objection to the bill, as it now stands, and I am not inclined to overrule it altogether. The judgment creditors mentioned in the plea must be made parties; for their claim to the Surplus may be better than that of the plaintiffs, and the plaintiffs cannot obtain a decree for it, until they are heard. I shall, therefore, let the cause stand over, with liberty to the plaintiffs to amend their bill by making those Creditors parties; and it must be upon the payment of the costs of the pleas and the Subsequent proceedings; but in taxing the costs, the defendants are not to be allowed for any part of those pleas that relate to the proceedings in Chancery, or the proceedings by and before the Master. The defendants are to be entitled to the usual time to answer the bill when amended.

Order accordingly.