Citation Numbers: 16 N.Y.S. 99, 40 N.Y. St. Rep. 693
Judges: Osborne
Filed Date: 10/26/1891
Status: Precedential
Modified Date: 1/13/2023
Defendants appeal from an interlocutory judgment overruling a demurrer to the complaint herein. The complaint, in substance, alleges that Daniel Buhler, plaintiff’s assignor; the defendants, composing the firm of Daniel W. Richards & Co.; F. Clancy; Nathaniel McKay; Hubbell & Porter; and E. Stannard,—having in view an impending sale of certain vessels by the United States government, entered intoan agreement in writing, dated September 19, 1883, to the effect “that, in the event of any or all of the bids offered by each being accepted by the government, the vessels so purchased are for the joint account of the parties signing this agreement; each one paying his share of the purchase money when called upon so to do.” The complaint then alleges the assignments by Clancy and by McKay of their interests under said agreement to Richards & Smith, Stannard, and Buhler, so that the interests of the several parties under said agreement were as follows: Defendants, Richards & Smith, E. Stannard, and Daniel Buhler, each 5-18; and the firm of Hubbell & Porter, 3-18. That one of the vessels advertised for sale by the government, as stated in said agreement and referred to therein, was the steamer Florida. That on February 14; 1885, said steamer was sold by the United States to the defendants for the sum of $42,000. That the vessels mentioned in said agreement, including the Florida, were chiefly valuable to break up and sell. That the parties to said agreement lived under it, and
The one question for our determination on this appeal is, does it appear upon the face of the complaint that Stannard and Hubbell & Porter are necessary parties to the action? A careful examination of the complaint fails to disclose to us that the presence of-Stannard and of Hubbell & Porter as parties to this action is necessary to the determination of plaintiff’s alleged cause of action, or that the court cannot completely determine the controversy between the plaintiff and thedefendants without prejudice to any-possible rights of Stannard or of Hubbell & Porter. There is no allegation in the complaint that Stannard and Hubbell & Porter, or either of them, have sought or claimed any interest in the purchase of the Florida, or that they have paid, or offered to pay, their shares of the purchase money, or that they have any subsisting interest in said purchase, or that they have not been paid any shares of any profits they might be entitled to, nor is any claim made by plaintiff against them. Assuming that they had been made parties to the action, it is difficult to see what defense they would have been called upon to make to the complaint as it now stands. The learned counsel for the appellants cites several authorities to sustain his contention that in an action relating to personalty all the tenants in common must join. An examination of those authorities shows that this rule only applies where the action is brought against a third person, as for injuries to a chattel, or for its conversion, and it does not apply to an action between two or more tenants in common. The case of Dean v. Chamberlin, 6 Duer, 691, relied on by appellants, is not in point. There, defendant was to account to plaintiff and 9 others, harbor-masters of the port of Hew York, for the fees which defendant was employed by them all to collect for their account, and for which he was to account to them severally; and the complaint alleged the interests of the whole 11 in the fund so collected. In the case at bar, as before stated, the complaint fails to show upon its face that the parties not joined have or claim any interest in the proceeds of sale" of the Florida, and are necessary parties to the action. If the complaint alleged such an interest, then the demurrer would be well taken.
We fail to see any reason why, on the allegations of the complaint, plaintiff may not prosecute her alleged cause of action, and obtain an adjudication thereon, free from any possible claim of the other parties to the agreement. There is no community of interest between her and the other parties. Her share is a distinct and definite interest, readily ascertainable upon an accounting showing the profits, if any, upon the breaking up and sale of the material in the Florida. In such a case each tenant in common may demand of his