Bermes v. Frick

This'suit is brought by Daniel Bermes, to compel contribution by certain persons, who were co-sureties with him in a bond for $25,000, given April 7th, 1879, by Charles Wurtz, as treasurer of the town of, Union, in Hudson county, conditioned for his faithful performance of the duties of the office. The sureties were the complainant and John Kempel, William Rehmer, Philip Frick and Daniel J. Rooney. There was a breach or breaches of the condition, and suit was brought in the supreme court, on the bond, by the town, against the principal and sureties, and a judgment recovered therein for $10,778.30. Execution having been issued thereon, and levied on the complainant’s property, he, in September, 1882, paid the amount due on it, and took an assignment of the judgment from the plaintiff therein. He files this bill against those of his co-sureties who are still alive, to compel contribution. He alleges that th« principal has fled the state, and that he is informed, in such a way that he believes it to be true, that Wurtz is not possessed of any property here whereof the judgment, or any part of it, can be made. He states that Kempel, one of the sureties, is dead, and has left no property j that the complainant has applied to. his other co-sureties, the defendants, Frick, Rehmer and Rooney, to pay him their equitable shares of the judgment debt, interest and costs paid by him, but they have refused; that Frick has property, but not enough to pay the amount of the complainant’s equitable claim *90against him; that Rehmer, when he became surety, had certain real estate in the town of Union, described in the bill, but that he fraudulently, and to hinder, delay and defeat his creditors of their just claims, and especially the complainant of his claim for contribution, conveyed it away, in September, 1879, and the like allegations are made in regard to Rooney, who is said to have conveyed away property of his by deed dated in December, 1878 (which was before the bond was given), but not acknowledged or recorded until April 11th, 1879, four days after the giving of the bond. The bill charges that both Rehmer and Rooney have other property which they conceal, with intent to defraud the complainant out of the money they ought to contribute. Rehmer and Rooney have answered. Frick has filed a genera] demurrer. It is urged, in his behalf, that it does not sufficiently appear that the principal is insolvent. The bill states the fact that the principal has fled the state, and (substantially) that he has no property here, so far as the complainant can ascertain. This is sufficient.

It is also urged that it does not appear that the complainant has not been repaid the money he paid on the execution. He states that, under the pressure of an execution and levy, he paid the judgment, and that he has requested the defendants to pay their equitable shares, and that they have refused. The averment that the complainant has not been repaid, is not necessary. It would, perhaps, have been more exact pleading, to have made it, but the plain inference, from the language, is that the money *91has never been repaid. Certainty to a common intent is enough in chancery pleading.

The demurrant also insists that the bill is multifarious, because of the allegations touching the conveyances by Rehmer and Rooney of their property, and the discovery which is sought as to them. He is not required to answer those allegations, and will not be embarrassed or put to any trouble by the call for a discovery from Réhmer and Rooney. This objection cannot be sustained. The demurrer will be overruled, with costs.