East River & Astoria Land Co. v. Kindred — 128 A.D. 146

Majority

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East River and Astoria Land Company, Respondent, v. J. Joseph Kindred and Others, Appellants, Impleaded with Christian Steinmetz and John M. Thompson, Defendants.

Second Department,

October 16, 1908.

Headnote

Pleading—complaint for specific performance of contract to sell lands field by another — proper parties in equity.

A complaint for the specific performance of a contract to sell lands which alleges that the vendor was the owner and entitled to possession' when he made the contract, but that the title stood in the name o£ his sister for his “ use and benefit,” and that she afterwards conveyed to the vendor’s wife who now holds for his “use and benefit,” states a cause of action.

As such suit is in equity, the mother and sister are proper even if not necessary parties defendant.

Appeal by the defendants, J. Joseph Kindred and others, from an interlocutory. judgment of the Supreme Court in favor of

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the plaintiff, entered in the office of the clerk of the county of Queens on the 17th day of March, 1907, upon an order made at the Queens County Special Term and entered in said clerk’s office on the 16th day of March, 1908, overruling the said defendants’ demurrer to the complaint, and also (as stated in the notice of appeal) from the said order upon which the interlocutory judgment was entered.

The defendant J. Joseph Kindred made a contract with two associates that they three should form the plaintiff corporation, and be the stockholders thereof, whereupon he would convey to it certain lands ; and this is a suit by it to enforce specific performance of such contract, it having been formed pursuant to the said contract.

T. Ellett Hodgskin [ George W. Wingate with him on the brief], for the appellants.

Earle W. Webb, for the respondent.

The complaint is for specific performance of a contract of sale of real property by the defendant- J. Joseph Kindred. It alleges that he was the owner and entitled to the possession of the property when he made the contract, but that the title stood in the name of his sister “ for his use and benefit ”, and that since she has conveyed it to his wife, and that the latter holds it “ fór his use and benefit ” ; and they are made parties defendant with him. They demur together on the grounds (1) that the plaintiff has not the legal capacity to sue, and (2) that the complaint does not state facts sufficient to constitute a cause of action. The first ground is frivolous. The second is not good. The complaint certainly states a cause of action against J. Joseph Kindred. If each of the two other defendants severed, and demurred that it stated no cause of action against her, another question would be presented, as neither of them signed the contract of sale. However, the allegations of the complaint may be broad enough to bear the interpretation that by the terms of the deeds to them J. Joseph Kindred has the title and the power and right to sell the property, for no trust seems to exist by said

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deeds; in which case, under the liberal rule in equity as to proper parties, they would be such. It is . enough in equity if they be proper although not necessary parties.

■ The judgment should be affirmed.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

Interlocutory judgment affirmed, with costs.