Van Tuyl v. Scharmann

153 A.D. 902, 137 N.Y.S. 1147

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1912
• Status: Published

Opinion

Per Curiam:

We think that the decision of the learned Special Term overruling the demurrer to this complaint was proper. The chief points of attack made upon the complaint have already been discussed by this court in Cheney v. Scharmann (145 App. Div. 456),, and we see no present reason for departing from the conclusion then reached by the court and which was adverse to .the contentions now made by the appellants in this action. The point of the demurrer as to the defect of parties defendant was not involved in nor discussed in the decision referred to, but we agree with the learned Special Term that the Lafayette Trust Company was not a necessary party to the maintenance of this action in equity, although it was a proper party and may be brought in at any time before the trial of the action. , The order overruling the demurrer is affirmed, with ten dollars costs and disbursements, but -with leave to the defendants to answer within twenty days on payment of the costs and disbursements of this appeal together with the costs awarded in the order appealed from. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred. Order overruling demurrer affirmed, with ten dollars costs and disbursements, but with leave to the defendants to answer within twenty days on payment of the costs and disbursements of this appeal together with the costs awarded in the order appealed from,