10 N.Y.S. 303 | N.Y. Sup. Ct. | 1890
The Code (section 488) does not authorize a demurrer on the ground of a misjoinder of parties defendant, therefore the first ground of demurrer is overruled.
The second alleged ground of demurrer is that the-complaint does not state facts sufficient to constitute a cause of action as against 'the defendant Eliza Brogan. This ground- of demurrer seems to me to be well taken, for the reasons that may be briefly stated. The complaint asserts no cause of action against Eliza Brogan, and contains no averment showing that she is a necessary or proper party for a complete determination of the action between the plaintiffs and the defendant George W. Patterson. The gist of the action is to obtain an injunction to prevent the defendant Patterson from proceeding in the surrogate’s court to obtain the revocation of a will already probated, and from proceeding to obtain the probate of another and distinct will, executed by the testator at a period subsequent to the will already probated. The plaintiffs’ right to such relief is predicated upon the statement that the defend
Code Civil Proc. N. Y. § 2472 et seq.