Letson v. Evans

33 Misc. 437, 68 N.Y.S. 421

• Court: New York Supreme Court
• Decided: December 15, 1900
• Status: Published

Opinion

Hiscock, J.

The demurrer is sustained upon various grounds: 1. Plaintiff has united in her complaint two purported causes of action which cannot be united. The attempted union could only be claimed to be permissible under subdivision 9, section 484, Code, which provides that causes of action may be united in the same complaint brought to recover upon claims arising out of the same transaction or transactions, or connected with the same subject of action. .That is not this case. One cause of action is based upon a will which makes the plaintiff and certain of the defendants tenants in common, and seeks as its object a partition of the real estate. The second cause of action has for its subject the establishment of a debt against the testator’s estate, and as incidental thereto a sale of his real estate for the payment thereof. They are two entirely different subjects of action.

2. This court is not the proper tribunal in which plaintiff should seek the relief attempted to be secured by her second cause of action upon the facts appearing. Hogan v. Kavanaugh, 138 N. Y. 417.

3. Apparently testator left a widow who- has a life estate in the real estate of which partition is sought. Bumsey Pr. 383, and cases there cited. If so, she is a necessary party. Code, | 1538.

The demurrer is, therefore, sustained, with costs to be taxed as in a regular action.

Demurrer sustained, with costs.