13 N.Y.S. 794 | New York City Court | 1891
The complaint shows that plaintiff Charlotte Albere was indebted to defendant in the sum of $500; that she and the other plaintiffs, her children, executed their bond to defendant for that amount, and executed a mortgage to secure the same on real estate owned by the three plaintiffs; thereafter the defendant assigned this bond and mortgage to one Hamlin; that thereafter defendant Kingsland became indebted to plaintiff Charlotte Albere, and in payment of this indebtedness the defendant agreed to pay this bond and mortgage so assigned to Hamlin and then due; that thereafter defendant paid the interest thereon till January 1, 1889, but has failed to pay the principal thereof, or the interest thereon, since January 1, 1889, though requested to do so. The defendant interposed a demurrer to this complaint on two grounds: “First, that there is a misjoinder of parties plaintiff, in that the plaintiffs George W. Albere and Emma Jane Albere have no interest in
This disposition of that ground of demurrer brings us to the consideration of the other cause of demurrer,—that the plaintiffs George W. and Emma Jane Albere have “no interest in the subject-matter of this action;” that the cause of action set up is not in their favor, but in that of the other plaintiff, the mother, alone. The consideration of this proposition presents two questions: First. Whether all three of the plaintiffs were parties to this agreement of the defendant to pay their bond secured by mortgage on premises owned by all of them. Second. If the mother alone was a party to this agreement, then whether, it being made by the mother and defendant for her own benefit, and partly, at least, for the benefit of her two children, they can enforce its beneficial provisions after having adopted and accepted the obligation of the agreement made for their benefit. It will be observed that the agreement does not in express terms contain an exclusive promise to Charlotte Albere, but a promise to pay the bond and mortgage, which were made by all three of the plaintiffs on premises owned by all of them. It being man