96 N.Y.S. 400 | N.Y. Sup. Ct. | 1905
This action is brought by the administratrix and the heirs at law and next of kin of Mary Conley, a deceased legatee of one James Hernon, the executor of whose will, Patrick Walton, is alleged to have embezzled funds belonging to the Hemon estate, and to have conveyed to the defendant, Anna T. Walton, his wife, without consideration, and with intent to cheat, defraud, hinder and delay his creditors and the. persons beneficially interested in the Her: non estate, and to create a secret and illegal trust for the benefit of himself and his family, certain real property which is sought to be reached and sold in this action, and the proceeds distributed among those entitled thereto. A demurrer has been interposed by the defendant Tobin upon the ground of misjoinder of parties plaintiff, in that no cause of action is stated in favor of such of the plaintiffs as sue individually. The demurrer must be sustained upon the authority of Havana City R. Co. v. Ceballos, 49 App. Div. 263. The principle of that decision, as I interpret it, is that, in order to join one as a party plaintiff under the provisions of section 446 of the Code of Civil Procedure, it is not enough that he have an interest in the subject of the action, but he must have a right to enforce an obligation or to recover property. The question of the necessity of such a right was not discussed in Peck v. Richardson, 12 Misc. Rep. 310, 17 App. Div. 618,
Demurrer sustained, with costs, with leave to amend upon payment of costs within twenty days.