Cowing v. Greene
New York Supreme Court
THIS was an action brought by the plaintiff as a judgment creditor of Joy & Webster, to reach and apply on his judgment certain moneys and property of Joy & Webster, alleged to be in the hands of their attorney, and of a party co-operating in bad faith with him, and by them to be fraudulently withheld from Joy & Webster and their creditors, in violation of the trust and duty of such attorney.
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THIS was an action brought by the plaintiff as a judgment creditor of Joy & Webster, to reach and apply on his judgment certain moneys and property of Joy & Webster, alleged to be in the hands of their attorney, and of a party co-operating in bad faith with him, and by them to be fraudulently withheld from Joy & Webster and their creditors, in violation of the trust and duty of such attorney. The case was referred to referees, who reported in favor of the plain- . tiff; and from the judgment entered upon their report, the defendants appealed to the general term.
1Opinion of the Court
'By the Court, Davis, P. J.
The objection that Joy ,& Webster were not made parties to this action can not now be made by the defendants. Every fact to show the propriety or necessity of making them parties, distinctly appeared upon the face of the complaint. It was the duty of the defendants to have demurred for defect of parties. (Code, § 144.) Hot having done so, the defendants have waived the objection and can not be allowed to insist upon it here. (Code, § 148.) The defendants must be regarded as having expressly consented to waive this objection, and ought not to be heard at all upon it…
2Cases cited3 opinions
- Kelly v. IsraelNew York Court of Chancery · 1844
- Washington Bank v. PalmerThe Superior Court of New York City · 1850
- Vanduzen v. WorrellNew York Supreme Court · 1854
3Cited by1 opinion
- Riley v. BrodieNew York Supreme Court · 1898