Fisher v. Heer

259 A.D. 952, 20 N.Y.S.2d 147, 1940 N.Y. App. Div. LEXIS 7407

Opinion

Defendant has appealed from an order of the Albany Special Term of the Supreme Court, denying his motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action and also denying his application to have Elizabeth B. Skillman brought in as a party defendant. The action is to recover damages from defendant on the ground that he induced plaintiffs, through false and fraudulent representations, to execute a contract for the purchase of certain real property owned by the said Skillman. Plaintiffs alleged that Skill-man had no right to convey the premises and that as a result of defendant’s fraud plaintiffs were damaged to the extent of $200. The motion to dismiss the complaint was properly denied. The complaint states a good cause of action against defendant. Defendant asserts that Skillman is responsible for plaintiffs’ damages. In view of that contention she should be brought in as a party defendant. The order appealed from should, therefore, be modified by directing that Elizabeth B. Skillman be brought in as a party defendant and that a supplemental summons and a pleading alleging defendant’s claim against her be served upon her and said Elizabeth B. Skillman. is directed to plead thereto. Order appealed from modified and, as so modified, affirmed, without costs. Hill, P. J., Crapser, Bliss, Heffernan and Sehenck, JJ., concur.