Drake v. New York Iron Mine

BARNARD, P. J.

The fourth defense in the several answers of Wet-more and Maynard, assignees, is a proper defense, as far as it goes, and should be left in the answers. The plaintiff is the owner of the notes given in the name of the New York Iron Mine by Wetmore without authority from the corporation to give them. Wetmore was a large owner •of stock in the company. The complaint states that Wetmore assigned certain dividends on the stock by charging the plaintiff’s notes against himself, and by entry on the books authorized the corporation to apply such dividends to the payment of the plaintiff’s notes. The fourth defense avers that the plaintiff’s notes were part of a large amount of notes, all of one general character, and were negotiated at about the same time; and this defense further avers that the entries on the books concerning the whole of these notes were of the same purport and effect, and that any right acquired by the entries was acquired by all the other holders of the other notes, without any preference whatever in favor of the plaintiff, as against th.e other holders. It is true that this fourth defense states that there is a defect of parties, but the substance óf the answer must remain, whatever the order may be on the trial. If the plaintiff has *493not a prior lien on the dividend found, but others share with him, there is no difficulty in giving the plaintiff judgment for his share. As the pleadings stand, the plaintiff avers a prior lien, and the defendant avers that others must share equally with him. The plaintiff need not bring in parties because a defendant avers that parties are necessary. The demurrer to the fourth defense was properly overruled, but no new parties are needed; and this order is affirmed, with the modification that the fourth defense stand as it is. No costs to either party on this appeal. All concur.