Covey v. Covey — 19 N.Y.S. 487

Majority

p. 487

Covey et al. v. Covey.

(Supreme Court, General Term, Fifth Department.

June, 1892.)

Headnote

Misjoinder of Actions—Waiver of Objections—Consent to Refer.

The legatees of a remainder of personal property, which is to be divided equally between them, cannot maintain a joint action therefor against the administrator of the owner of the life interest, and such misjoinder is not waived by defendant’s consent to refer the claim, where the fact that the claim is several, and not joint, did not appear on the face of the claim as presented.

Appeal from special term, Onondaga county.

p. 488

Action by Cynthia M. Covey and others against William R. Covey, administrator. Prom an order confirming the report of a referee, plaintiffs appeal.

Affirmed.

Argued before Dwight, P. J., and Macomber and Lewis, JJ.

H. Greenfield, for appellants. F, 8. Coburn, for respondent.

No question is made of any of the facts found by the referee. Accordingly no case was made, but the confirmation of the report was opposed on tile ground that the facts found did not support the conclusions of law. The findings of fact were to the effect that the plaintiffs were five legatees of a remainder of personal property,—after a life estate therein,— which was to be divided equally between them; that the property included a horse, which had been sold by the survivor of the life tenants, the avails of which remained a part of her estate at the time of her death, and was the subject of the claim in this proceeding against the defendant as her administrator. The referee dismissed the claim on the ground that the plaintiffs’ cause of action was several, and not joint; that they had no joint interest in the recovery sought, and could not maintain a joint proceeding therefor. We suppose this conclusion was entirely correct. Myers v. Cronk, 45 Hun, 404 . Counsel for the plaintiffs urge that the objection to their being joined, if it existed, was waived by the consent of the defendant to refer the claim as presented. But the fact that the claim of the plaintiffs was several, and not joint, did not appear on the face of the claim as presented, and the administrator (defendant) is not chargeable with knowledge of what the proof would be. There is in this special proceeding neither demurrer nor answer by which the objection could be taken. The defendant may await the developments of the trial, and make bis objections as the grounds for them appear. When the fact appeared that the claim of the plaintiffs was for their several shares of a sum of money in the hands of the defendant, the objection to their joint proceeding for its recovery was well taken and properly sustained. The order appealed from must be affirmed.

Order affirmed, with costs. All concur.