Muller v. Wahler — 1 A.D. 245

Majority

p. 245

August Muller and Others, Appellants, v. Kasper Wahler, Respondent.

Headnote

Action to reform a contract ■—signed individually, hut intended to he the contract of an association — waiver of the omission of the association as a party defendant.

The complaint in an action alleged that the plaintiffs had signed their names as individuals to an agreement purporting to have heen made between the Wyckoff Heights Improvement Association and the defendant, whereas they intended to sign only as officers of that association; that the defendant had brought an action against them based upon the allegation that such agreement had been executed by them as individuals. The plaintiffs asked for a reformation of the agreement and an adjudication that they did not enter into the agreement as individuals. The answer interposed by the defendant contained no denials and pleaded only the pendency of a former action. Upon this state, of the pleadings the plaintiffs made a motion to have the association made a party defendant, which was denied.

Held, that the denial of such application was proper;

That as the defendant admitted that the plaintiffs signed not as individuals, but as officers, and did not object to the omission of the association as a party defendant, the plaintiffs had no right to bring in the association at this stage of the action.

Appeal by the plaintiffs, August Muller and others, from an order of the Supreme Court, made at the Kings County Special Term* and entered in the office of the clerk of the county of Kings

p. 246

on the 10th day of January, 1896, denying their motion to bring in as a party defendant the president or treasurer of the Wyckoif Heights Improvement Association of Queens county, or to bring in the Wyckoif Heights Improvement Association of Queens county,, an unincorporated association, as a party defendant.

M. Hallheimer, for the appellants.

Walter G. Rooney and William J. Ga/rr, for the respondent.

This is an appeal from an order made at the Kings County Special Term denying plaintiffs’ motion to bring in the Wyckoif Heights Improvement Association of Queens county as a party defendant to-the action. The complaint charged that the plaintiffs had signed their names as individuals to an agreement purporting to be made-between the association and the defendant, while it was in truth intended that they should sign only as officers of the association ; that defendant had brought an action against them on such agreement and demanded as relief that the contract be reformed and that it be adjudged and declared that the plaintiffs did not enter into said contract individually. The defendant answered denying no allegation of the complaint, but pleading only the pendency of another action..

It may be conceded that the plaintiffs should originally have made the association a party defendant. It may, also, be that the defendant could insist that no judgment should be made relieving the plaintiffs from liability on the contract, unless at the same time it imposed such liability on the association. But the defendant has taken no such objection. He does not complain of the absence of the association as a party to the action. In fact, he admits the allegation that the plaintiffs simply intended to sign it, not individually, but as officers. The only interest that the plaintiffs have in this controversy is to clear their own skirts from liability on the contract, not to impose the obligations of the contract on any one else. Therefore, as the defendant does not complain, the plaintiffs, have no right to bring in the association.

The order appealed from should be affirmed, with costs.

All concurred, except Bartlett, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.