Carpenter v. Mosher — 125 N.Y. 736

Majority

p. 736

George W. Carpenter, as Executor, etc., Respondent, v. Carrie M. Mosher et al., Appellants.

(Argued February 2, 1891;

decided February 6, 1891.)

Headnote

Appeal from judgment of the General Term of the Supreme-Court in the second judicial department, entered upon an order made May 14, 1890, which affirmed a judgment in favor of plaintiff entered upon a decision of the court' on trial at Special Term.

This action was brought to vacate and set aside two deeds-on the ground of fraud and undue influence.

Gilbert 0. Pulse and Charles P. Roosevelt for appellants..

John P. Glapp for respondent.

The following is the mem. of opinion :

“As to the appellant Carrie Mosher, there was evidence-upon which the trial court could find for the plaintiff, and as-to her the judgment should be affirmed, with costs.

“ As to the appellant William A. Mosher there is no proof warranting his joinder as a party defendant in such an action, and the finding of the trial court was, in fact, that he had no-interest in the premises described in the complaint. It was error, therefore, to deny the motions, made in his behalf, for a dismissal of the complaint and for a nonsuit, and the judgments entered against him should be reversed and judgment entered dismissing the complaint as to him, with costs in all the courts.”

for affirmance of judgment as to defendant Carrie M. Mosher, and for a reversal as to defendant William A. Mosher.

All concur, except Rugkeb, Ch. J., not voting.

Judgment accordingly!