Newbould v. Warrin

14 Abb. Pr. 80

• Court: New York Supreme Court
• Decided: March 15, 1862
• Status: Published

Opinion

Mason, J.

This case comes before the court on separate demurrers taken to the complaint by Samuel Lord and William J. Lewis. Heither of these defendants Lord or Lewis can raise the question by demurrer that the legal representatives of Charles W. Dayton should have been made defendants in this action, as neither of them has any interest in that branch of the case. It is only when the defendant has an interest himself in another’s being made defendant, that he can demur for want of parties. It must appear that his interest requires that such other party should be made defendant, before he can demur. (14 How. Pr., 546, 460.)

There is, in my judgment, a good cause of action stated in the complaint both against Lord and Lewis. If the allegations of the complaint are true, the plaintiff is entitled to have the chattel mortgage given to Lord declared fraudulent and set aside; and as to Lewis, the allegation substantially is that Lewis has property in his possession, and which he fraudulently covers up and claims to be owner of, but which, in fact, belongs to the said Thomas Warrin, and should be devoted to the payment of the plaintiff’s judgments.

There is no misjoinder of causes of action as I understand the rule to be settled by the Court of Appeals. (Reed a. Stryker, 12 Abbotts’ Pr., 47; Emery a. Pease, 20 N. Y, 62. See, also, 20 Barb., 387; 11 Abbotts’ Pr., 427; 11 How. Pr., 201.) There must be judgment for the plaintiff on the demurrer, with leave to the defendants to answer, on the payment of the costs of the demurrer.