McDonald v. McDonald

120 A.D. 367, 105 N.Y.S. 277, 1907 N.Y. App. Div. LEXIS 1179

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 1907
• Status: Published

Opinion

Lambert, J.:

The motion here under consideration was made after the service of the summons and complaint, and after the service of the answer, but before the time for the amendment of the complaint had expired. The facts set forth in the' answer of the defendant clearly show that Henry S. Kearney is a proper and necessary party defendant. It is there alleged that he was a copartner of the defendant’s husband, and that the property involved in the litigation belonged to the copartnership, and that it had been dealt with in accordance with the partnership agreement, Mr. Kearney having realized a considerable profit from the transaction. On the face of the transaction John E. McDonald was the actual owner, of the property, and the plaintiffs, his heirs at law, liaVe a right to bring in Mr. Kearney and to have it determined whether he has a right to profits aggregating over $20,000 which resulted from a sale of this property. This controversy cannot be determined, with, any practical results to the plaintiffs, without the presence of Mr. Kearney, and under such circumstances it is made the duty of the court to direct him to be brought in. (Code Civ. Proc. § 452; Holly v. Gibbons, 176 N. Y. 520, 530.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and' the motion granted, with ten dollars costs.

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costa and 'disbursements, and motion granted, with ten dollars costs.