11 A.D. 613 | N.Y. App. Div. | 1896
Lead Opinion
Plaintiff’s complaint contains extensive and elaborate allegations of fraudulent acts and schemes and devices of the defendants, whereby they have obtained possession of moneys of the plaintiff
There is no allegation in the complaint that the plaintiff was one of the purchasers of block 7, nor that he advanced any moneys towards the purchase thereof. It is averred in the complaint that the following persons entered into an agreement for the purchase of block 7, to wit: Horatio Gilbert, W. E. Tuttle, Addie B. Furman, Thomas D. Welch, Everett S. Copeland, Hilton J. Baker, John R. Rose, Arthur C. Tadder, Alexander Lieb, William B. Hernán, F. Y. Combs, Phillip N. Hast, Jr., and others. It will be observed that in this allegation there is no allegation that the plaintiff was one of the purchasers. Nor is there any definite and specific allegation that he has any interest in block 7.
While it is difficult to see that the plaintiff has any ground of relief predicated upon the allegations relating to block 7, it is equally difficult to reach the conclusion that the complaint does not state facts “ sufficient to constitute a cause of action.”
The plaintiff seeks to have an accounting, and alleges the representations and their effect upon him, and that by means of the representations he was fraudulently induced to part with his money; and that by means of the false and fraudulent schemes concocted and practiced by the defendants that he is entitled to relief.
(2) It is made a ground of demurrer that the defendants Erwin H. Lanphear, Arthur G. Tadder and Earl H. Lanpliear were not joined as defendants as trustees. The allegation seemed to be sufficiently broad to indicate that their liability exists by reason of their fraudulent practices, and seemed to be sufficient to sustain the complaint against them in that aspect, not only for moneys had and obtained by means of the fraud, but to render them liable to account as trustees under the mortgage for anything they have received.
The case of Calkins v. Smith (48 N. Y. 614) furnishes little aid in the determination of the question in hand, as that was an fiction at law.
If we follow the tenor of the opinion in that case we may uphold the complaint in the case in hand and affirm the judgment at Special Term.
Adams and Ward, JJ., concurred; Eollett and Green, JJ., dissented.
Dissenting Opinion
May 25, 1881, the plaintiff and fourteen others, by an executory contract, purchased of the Englewood Land Company block Ho. 8 of the Englewood tract for $15,000. Each of the. purchasers was entitled to a one-fifteentli interest in the block, and was liable, as between themselves, to pay one-fifteenth of the purchase price.
June 10, 1891, the plaintiff and ten others, by an executory contract, purchased of the Englewood Land Company block Ho. 16 of the Englewood tract for $14,000. Each of the purchasers was entitled to a one-fourteenth interest in the block, and was liable, as between themselves, to pay one-fourteentli of the purchase price, except the plaintiff, who was entitled to a two-fourteenths interest in the block, and Erwin H. Lanphear, who was entitled to a three-fourteenths interest in the block.
By these contracts the plaintiff became entitled to a one-fifteenth interest in block Ho. 8, and liable to pay therefor, as between the purchasers, $1,000, and entitled to a two-fourteenths interest in block Ho. 16, and liable to pay therefor, as between the purchasers, $2,000.
May 25, 1891, fourteen persons, of whom the plaintiff was not one, by an executory contract, purchased of the Englewood Land Company block Ho. 7 of the Englewood tract for $15,000. It is alleged that each purchaser took a one-fifteentli interest, but it would appear by the contract that each took a one-fourteenth interest.
March. 1,1892, the Englewood Land Company conveyed by three deeds, blocks 7, 8 and 16 to Erwin H. Lanphear and Arthur C. Tadder as trustees for the purchasers, who on the same day mort
It is alleged as a cause of action that Erwin H. Lanphear, to induce the vendees in the contracts to become purchasers, represented that he had secured options on said blocks at the prices named in the contracts, and that the blocks could not be purchased for less ; that he was to have no commissions on the purchase, and that the contract prices represented the sums actually paid to the land company for the blocks. It is also alleged that these representations were false and fraudulent; that in truth and fact, instead of $44,000 being paid for said blocks, only the sum of $32,480 was paid for said blocks, leaving a difference of $11,520, which the defendant secured by the aforesaid mortgage and $2,000 received in cash. The plaintiff by this action seeks to recover his interest in that sum, and asks for an accounting. In the three contracts twenty-six persons and one firm of two persons are represented as purchasers, and it is alleged that they all live in or near the city of Hornellsville. All these persons are interested in this action and they should have joined as parties, either as plaintiffs or as defendants. It is difficult to see how the interests of these persons can be ascertained without making them parties.
This action cannot be maintained under section 448 of the Code Civil Procedure, which provides: “ And where the question is one of a common or general interest of many persons, or where the persons who might be made parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.”
The fact that thirty-five or forty persons are interested in an action does not of itself authorize one to prosecute for all. It must be impracticable to bring all before the court, (Kirk v. Young, 2 Abb, 453 ; Brainerd v. Bertram, 5 Abb. N. C. 102 ; Pom. Code Rem. 388 et seq.; Story’s Eq. Pldgs. [10th ed.] § 94; Barb, on Parties, 346.)
In this action it is not shown that it is impracticable to bring these persons, who are united in interest, by contract, before the court as parties to the action. On the contrary, it appears on the face of the complaint that it is quite practicable. There is a defect of parties, and for that reason the interlocutory judgment should be
Green, J., concurred.
Interlocutory judgment affirmed, with costs, with leave to appellant to withdraw his demurrer upon payment of the costs of the demurrer and of this appeal.
