Majority
p. 450George W. Carpenter, Ex’r, Resp’t, v. Carrie M. Mosher et al., App’lts.[1] (Court of Appeals, Filed February 6, 1891.)
Headnote
Appeal—Parties.Where there is no proof warranting the joining of a person as a party defendant in an action to set aside deeds for fraud, and the finding of the-trial court was, in fact, that he had no interest in the premises described in the complaint, it is error to deny motions made in-his behalf for dismissal of the complaint and for nonsuit.
Appeal from judgment of the supreme court, general term, second department, affirming judgment of special term vacating and setting aside certain deeds of real estate and restoring the-plaintiff Anna Theall to full ownership and possession.
John H. Scott, for resp’t; C. O. & L. S. Hulse, for app’lts.
As to the appellant Carrie M. 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.
All concur, except Ruger, Ch. J., not voting.