Palmer v. Searing — 12 N.Y. St. Rep. 559

Majority

p. 559

Alice Palmer, Resp’t, v. Benjamin T. Searing, Impleaded, etc., App’lt.

(Supreme Court, General Term, Second Department,

Filed December 13, 1887.)

Headnote

Pleading—Pabties dependant—Misjoindeb op causes op action.

In an actipn brought to have certain deeds, of real property described in the complaint set ¡.side and declared void, and to compel defendant to convey said property to the plaintiif, the complaint set forth the fraudulent representations by which the defendant Searing induced the plaintiif to put money into a certain business in order that her son might become a partner therein, and afterwards induced her to convey the property in quesd in to Searing. The defendant demurred to the complaint on the ground that the son should have been made a party plaintiff and not a defendant. Held, that the son, as a partner of said Searing, was properly made a defendant and would be bound by the judgment therein. Held, also, that there was not a misjoinder of causes of action, and that there was a good cause of action stated.

Appeal from an order and interlocutory judgment entered in the clerk's office of Queens county overruling a demurrer to the complaint.

This is an action in equity, to have certain deeds of the real property described in the complaint, set aside and de~

p. 560

dared void, and to compel defendant Searing to convey said property to the plaintiff.

The complaint sets out:

First. That on June 15, 1886, the plaintiff was the owner of the real property in question, freed of all incumbrances.

Second. That, at that time and since about September, 1885, the defendant Searing was engaged in the paper and cardboard business in New York city.

• .Third. That in, prior to and, since said September, the defendant Searing, with intent to injure and defraud the plaintiff and her son, the defendant, Hermann Palmer, and to obtain from plaintiff the said lands, and certain sums of money, and • to induce her said son to become a co-partner with him, falsely and fraudulently represented to plaintiff and to her said son, that his, Searing’s, business was a profitable business, that the assets in September were upwards of $50,000 over all habilities, and were producing a large yearly profit of over $12,000, and that if plaintiff would render her son pecuniary aid, he, Searing, would take him as a partner, giving him a one-fourth interest in the assets, and that any sum or property which she might loan or transfer to her son would be put into the business, which would be and had been conducted on a cash basis as was represented, and that she would at any time be able to withdraw the money or property from the business, and that her son would, under the terms of the co-partnership agreement, be enabled to repay and return the money or property to her from his interest in the business, and that the money or property to be so avanced would not be applied to or made liable for any habilities, either of the business or of defendant, Searing.

Fourth. That in consequence of these representations, on which the plaintiff and her son relied, the co-partnership agreement annexed to the complaint was obtained by Searing from the son, and the plaintiff advanced to her son, from time to time, various sums of money, which in October 1885, amounted to $14,481.40, to be invested in the business, and on June 15, 1886, was induced to and did convey to her son the said real property by good and sufficient deed to be turned over to said business in the place and stead of a note of $5,000 given by the son to the firm and being one of the notes referred to. in the co-partnership agreement.

Fifth. That all the representations so made by Searing were grossly false, to his knowledge, as particularly shown in the complaint.

Sixth. That, by reason of the foregoing facts, and the fraud and deceit of Searing, the plaintiff was induced to,

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and did, convey said lands to her son, who thereupon conveyed them to Searing (not to Searing & Oo.).

That Searing still retains the title to said lands under the deed of Hermann Palmer, and, though requested, refuses to re-convey to plaintiff.

Searing demurred to the complaint on these grouuds:

First. That there is a defect of parties plaintiff, because Searing’s fraud and deceit were practiced alike on the mother and son, and they should both be plaintiffs.

Second. That several causes of action have been improperly united, (a). That they do not affect all the parties to the action, as defendant Hermann Palmer is not affected by the cause of action against Searing, as his fraud and deceit were practiced against the plaintiff and her son. (b). That the defendant Searing is not affected by the cause of action alleged against Hermann Palmer for his alleged breach of contract in transferring the said property, (c). That the defendant Palmer is not affected by the cause of action alleged against Searing for a decree requiring him to convey the said lands to plaintiff, and that a cause of action against Hermann Palmer for a breach of contract is joined with one for fraud against Searing, and that one for breach of _ contract for failure of consideration against Searing is joined with one for fraud against him.

Third. That the complaint does not state facts sufficient to constitute a cause against the defendant Searing.

Booraem & Hamilton, for resp’t: Wilmott & Gay, for Searing.

The defendant m inc year 1885, ootamed by fraud $14,481.40, from the plaintiff in this way: He had a business in New York; it was insolvent and paid nothing, he represented to the plaintiff that if she would advance this money to her son he should be taken in as a partner in the proportion of three-fourths to defendant and one-fourth to the son. The son was entirely ignorant of the business as well as his mother. In addition to the money obtained, the son was induced by the same fraud to give $18,000 in notes, made payable in different sums to the new partnership. The first one was for $5,000, and due about June, 1886. The defendant then, by the same fraudulent representations, induced the plaintiff to convey the lands described in the complaint to her son, for the express purpose of being transferred by the son to the defendant Searing individually, in payment of the note for $5,000. This was done, and this action is brought to cancel these deeds and compel a re-conveyance by Searing to the plaintiff of the same. The first objection that the son should be plaintiff

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instead of one of the defendants, does not seem to rest om good ground. He is a party and will be bound by the judgment whether he is plaintiff or defendant. He is also a partner of Searing and as such is a proper defendant in proceedings which relate to the partnership. He is bound by the frauds of his co-partner committed after the partnership was formed, even if he was himself blameless, if the partnership received the avails of the fraud.

' The point that there is more than one cause of action, seems to be equally without merit. Whatever allegations the complaint contains are all directed to and end in the-result, namely, obtaining the deed by fraud in June, 1886. The sole cause of action is the recovering back of the land, obtained by fraud from the plaintiff. The remaining objection belongs to the same class. No cause of action is. stated against Searing, because the son of the plaintiff was< guilty of no fraud. It was to benefit the son that all these-falsehoods were practiced upon the mother. It was to introduce him to an established and paying business that: she advanced her money; both mother and son were defrauded, and then the defendant who reaped the benefit, and got the deed without consideration by fraud and evil practice is to keep it.

We deem the law to be otherwise. If the complaint is proven, the plaintiff has a good cause of action to recover back the deed to the land held by the defendant Searing.

The judgment should therefore be affirmed, with costs..

Dykman, J., concurs; Pratt, J., not sitting.