Kirk v. Young

2 Abb. Pr. 453

• Court: New York Supreme Court
• Decided: March 15, 1856
• Status: Published

Opinion

CleRKE, J.

The language of section 119 of the Code is too unequivocal and broad to admit of any doubt that the legislature intended that when the parties “ are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole,” whether the action would have been, under the old system, legal or equitable. Those distinctions, as two separate systems of procedure, are abolished by the Code; and all the provisions of the Code are applicable to every action, without reference to those distinctions.

But this is not a case in which it is impracticable to bring all the plaintiffs before the court; their number is thirty-five, and although perhaps too numerous not to make it somewhat inconvenient to the pleader to recount their names, it is certainly not impracticable to do so; and without a very obvious necessity, the court should always require that all the persons interested in the action should appear by their individual and real names.

Judgment for the defendant on the demurrer, unless the plaintiff shall amend within twenty days and pay the costs of this motion.