95 N.Y.S. 731 | N.Y. App. Div. | 1905
These appellants demurred to the complaint upon two grounds,' first, that there was a defect of parties defendant; and, second, that causes of action have been improperly united. The plaintiffs sue as legatees of Alexander P. Irvin, deceased, who was at the time of his death a member of the firm of Richard Irvin & Co., and who died in 1884. This firm had consisted of Richard Irvin, Sr., Richard Irvin, Jr., and Alexander P. Irvin. It is alleged that the affairs of that firm were never settled, and the action is-brought to compel the defendants, who are the personal representatives of the surviving partners who are since deceased, to account for the property that they received as surviving partners.
The complaint alleges that after the death of Alexander P. Irvin Richard Irvin, Sr., and Richard Irvin, Jr., organized a new firm, and appropriated the assets of the firm dissolved by the death of Alexander P. Irvin; that subsequently Richard Irvin, Sr., died, and the business was continued by Richard Irvin, Jr., who also acted as executor under the last will and testament of Richard Irvin, Sr;, and that the defendant William Irvin was also an executor of Richard Irvin, Sr., and is now the sole surviving executdr under his
The -relief that the plaintiffs ask is that the personal representatives of Richard Irvin, Jr., as surviving partner of Richard Irvin & Co., ‘ be required to account for the property of the firm of Richard Irvin & Co. as the -same existed on the 25th day of ¡November, 1884; and, further, that the agreement which authorized the executors of Richard Irvin, Sr., to convey to Richard Irvin, Jr., all the interest of Richard Irvin, Sr., in the estate of such copartnership and the agreement which conveyed such assets to Richard.Irvin, Jr., be set aside; . As .the legatees or next of kin- interested in- the .estate .of Alexander
• There is, however, I-think, a defect of. parties defendant, in that all of those who united in that agreement under which all of the interest of Richard Irvin, Sr., in the firm of Richard Irvin & Co. was transferred to Richard Irvin, Jr., are not parties to this action. The relief asked here, and which is necessary to entitle the plaintiff to recover any judgment in this action, is that that agreement be set aside as fraudulent. It is alleged that by that agreement Richard Irvin, Jr., agreed to defend and hold harmless the estate of Richard Irvin, Sr., of and from all claims of creditors of the firm of Richard Irvin & Co. If this agreement is set aside, this obligation of Richard Irvin, Jr:, would also fall, and all of those interested in the estate of Richard Irvin, Sr., are entitled to be heard before that contract or agreement should be set aside. The complaint alleges that these fraudulent representations and concealments were made to these interested in the estate of Richard Irvin, Sr. I do not understand that that agreement could be set aside as to-so me of the parties and sustained as to the others. It is either fraudulent or void as to all of the beneficiaries of Richard Irvin, or it is valid, and as there is an ápparent advantage to the estate of Richard Irvin, Sr., in the covenants of Richard Irvin, Jr., §11 of those who executed the agreement, and are interested in the property transferred, should be made parties defendant before it is adjudged fraudulent and void.
I think, therefore, that the judgment appealed from should be reversed, with costs, and the demurrer sustained upon the ground that there is a defect of parties defendant in that all of the parties
O’Brien, P. «L, Patterson, McLaughlin and Lahghlin, JJ., concurred.
Judgment reversed, .with costs, and demurrer sustained, with one bill of costs, with leave to plaintiffs to amend on payment of costs in this court and in the Court below. ,