Majority
p. 791Sarah E. Alexander, now Miller, and Annie E. Soules, Respondents, v. The City of Gloversville and F. A. Noyes, as Commissioner of Charities of the City of Gloversville, Appellants. Third Department, January 8, 1906.
Headnote
Complaint—misjoinder—assignor as party plaintiff—action for conversion assignable.The assignor of a claim who has parted with his entire interest cannot be joined with the assignee as a party plaintiff, and a demurrer to such complaint will be sustained.
A cause of action for the conversion of part of the proceeds of a check is assignable." ,
Appeal by the defendants, The City of Gloversville and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the' clerk of the county, of
p. 792
.Fulton ón the 14th day of September,- 1905-, upon the decision of" the court, rendered after a trial at the Schenectady Special Term, overruling the-defendants’ demurrer to the plaintiffs’ complaint, •.This action is brought for the conversion of'a "certain pension- " check, payable to the plaintiff Miller, for $282.80, and the proceeds*of said check to the extent of $152.41: It is -alleged in said com-" ■plaint that on or about the 1st day of Septetiiber, 1904, the defendr" ants took, retained and kept possession of said-check, and that they refused and neglected to deliver to her said check and the moneys' derived therefrom to the amount of $152.4Í, and that after demand by lier-on December 24,1904, the defendants withheld and deprived her of the proceeds of said check to the amount of .said $152.41," and have ever since kept and retained the same. " ■'
The complaint further alleges that on or about the 23d day of May, 1905, and before the commencement of this action, the plaintiff Miller duly assigned -the said claim and cause of action as alleged in the complaint to the plaintiff Soules. The" complaint demands judgment in favor of the plaintiff Annie F. Soules for said amount of with interest from said 2J¡th day of December, 190f The defendants demurred to the complaint on the grounds :
“ First. That the complaint does not state facts sufficient to . constitute a cause of action.
“ Second. That it appears on the face of the complaint that there is a misjoinder of. parties plaintiff, in that the plaintiff .Sarah E. Alexander, now Miller, is improperly joined with the other plaintiff Annie E. Soules, because she is shown to have no cause of action jointly with her, Annje E. Soules, but that the sole cause of action set forth in the complaint is shown to be in .the other plaintiff-, exclusive of said Sarah E. Alexander, now Miller.”
William A. MacDonald, for the appellants.
John J. O' Shaughnessy, for the respondents.
.FronTthe complaint we conclude that the plaintiffs claim that the -defendants took the pension check after the same had been indorsed by the plaintiff Miller and then .retained, from the proceeds thereof $15.2.41, and that nearly four months thereafter the defendants’" on
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demand refused to pay said balance to the plaintiff Hiller. The alleged claim and cause of action arising from such' refusal to return' part of the proceeds' of said check was one that could be assigned. It does mot come within the -terms of the prohibition contained in section 4745 of the Be vised Statutes of the United States (as amd. by 22 U. S, Stat. at Large, 432, chap. 58, § 2). (Farmer & Sons, v. Turner, 64 Iowa, ,690.) In a common-law action one who has no right or title to sue cannot join as coplaintiff with others who have such right. (15 Ency. PI. & Pr. 527; Porter v. Mount, 45 Barb. 422 .)
The plaintiff Hiller having transferred the entire cause of action to the plaintiff Soules the, demurrer on the ground of a misjoinder 'of parties plaintiff was proper and should liav-e been sustained. (Havana City R. Co. v. Ceballos, 49 App. Div. 263 .)
The interlocutory judgment should be reversed, with costs, and the demurrer should be sustained, with costs.
All concurred ; Kellogg, J., not sitting,.
Interlocutory ""judgment reversed, with, costs, and the demurrer sustained, with costs.
Cases cited
- Porter v. Mount 45 Barb. 422 p. 793