Garner v. Wright

By the court, I think it is a sufficient answer to the objection alleged as the first ground of demurrer, that the plaintiff claims relief which is not common to all the creditors under the assignment, viz.: the reforming of the instrument in the particulars above mentioned. In this the creditors are not united in interest, and hence should not be joined as plaintiffs, but are properly made defendants (Van Santvoord’s Pleadings, 2d ed. p. 131). The following rule is laid down in relation to parties plaintiffs: “ There must be one distinct general right, a community of interest, not merely in the subject matter involved, but also in the relief demanded.”

Ingalls, J.

Nor is the objection which is alleged as the second ground of demurrer, viz.: that Jeremiah Shufelt, Teunis H. Snyder and Peter Shufelt, should be joined as plaintiffs in this action, well taken. It does not appear by the complaint that they are all united in interest with the plaintiff in all the relief sought thereby, which is a sufficient excuse for not joining them as plaintiffs. The 119th section of the Code evidently contemplates a case where parties are united in interest in all the relief claimed in the action, and such is the obvious construction to be given to that section when compared with sections 117 and 118 of the Code.

Nor do I think the objection alleged as the third ground of demurrer well taken. There is really but one cause of action stated, arising out of one transaction, and the relief claimed is not inconsistent. All the rights of the parties interested can be settled in this action. Such being the case, two actions should not be tolerated. (Gooding agt. McAlister, 9 How. 123, 129; Cahoun agt. Bank of Utica, 7 N. Y. R. 486; Van Santvoord’s Equity Practice, vol. 1, p. 100; Jeroliman agt. Cohen, 1 Duer, 630, 633; N. Y. & N. H. R. R. Co. agt. Schuyler, 17 N. Y. R. 604; McKenzie agt. L' Amoureaux, 11 Barb. 516.)

The decision of the special term should be affirmed, with costs.