149 N.Y.S. 640 | N.Y. App. Div. | 1914
The grounds of the demurrers are that the amended complaint fails to state facts sufficient to constitute a cause of action, and that causes of action have been improperly united.
The plaintiff is a legatee and devisee under the will of John McB. Davidson. He brings this action to set aside decrees of the Surrogate’s Court judicially settling the accounts of the executors and trustees under the will, and to require them to account anew, and to cancel and annul a deed and an assignment of a lease made by the executors to the widow of the testator, and a conveyance and an assignment by her of a one-half interest therein to her daughter, and for other relief.
The plaintiff alleges that the respondents and others “ claim to have various interests as lessees, assignees, mortgagees or grantees in” the premises so alleged to have been conveyed by, and in the lease so alleged to have been assigned by, the
If the respondents acquired title to or an interest in the premises through the widow or her daughter, or both, they are necessary parties to an action to set aside a conveyance of the land and an assignment of the lease (Cook v. Lake, 50 App. Div. 92); and it was incumbent on the plaintiff to allege facts entitling him to have the conveyance or assignment to them set aside, as by showing that they took the same fraudulently or without consideration. The only allegations in the complaint relating to this point are those herein set forth, and it is manifest that they are insufficient. The plaintiff, in effect, alleges that they claim to have acquired their right, title or interest, relying upon the record title; but he does not charge that they did not part with consideration, or that they in any manner participated in the fraud, or had knowledge of the fraud and conspiracy which he alleges actuated the defendant executor and the widow. The mere fact, as alleged, that they had notice of the plaintiff’s rights and interests under the will does not charge them with notice of the fraudulent acts of which.he complains. The bald charge that they acted in bad faith in acquiring title is not a statement of fact. (Knowles v.
The other ground of the demurrers was equally well taken, for the plaintiff may be entitled to have the decrees of the Surrogate’s Court set aside, and not be entitled to have the deed and assignment from the executors set aside. The evidence on those issues will necessarily -be different. The executors obtained their authority to sell from the will, and not from the surrogate’s decrees. Therefore, there is an improper joinder of causes of action.
It follows, therefore, that the interlocutory judgment should be affirmed, with costs.
Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.
Interlocutory judgment affirmed, with costs.