Cagger v. Sholtes — 89 N.Y. Sup. Ct. 378

Majority

p. 378

Elizabeth F. Cagger and Others, Plaintiffs, v. Rhoda Sholtes and Others, Appellants. Henrietta Church, Respondent.

Headnote

Parties — made defendants, in a fending suit, against their will.

The court should not direct that persons, against their will, be made parties defendant to an action brought to recover real property and the appurtenances thereto, after the commencement of the action, without some satisfactory proof showing that they are proper parties to the action, especially where they positively deny the facts alleged upon information and belief by the plaintiff seeking to make them parties.

Appeal by the defendants, Rhoda Sholtes and others, from an order of the Supreme Court, made at the Albany Sjiecial Term and entered in the office of the clerk of the county of Albany on the 7th day of May, 1894, granting the motion of Henrietta Church to revive the action, and substituting Henrietta Church as the plaintiff therein, without prejudice to the order of reference made in the action, and directing that Cyrus S. and Pkilena Sholtes be made parties defendant to the action.

This action was brought to recover certain real estate and the appurtenances thereto.

p. 379

William Woumcms, for the appellants.

JRussell M. Johnston, for the respondent.

The petition states, upon information and belief, that since the commencement of the action Cyrus S. Sholtes and Philena Sholtes have acquired rights in the premises in the complaint in the action described, and are now in possession of said premises or some part thereof. No other proof appears in'the papers that said parties or either of them have any interest in the premises in question or are in occupation thereof. The case contains tbe affidavits of the said Cyrus S. and Philena Sholtes in which they each positively deny that they or either of them are the owners or have any interest in or are in possession of the premises described in the complaint.

The allegations in the petition thus made on information a/ncl belief being positively denied by the affidavits of Cyrus S. and Philena Shultes, I do not think the court should have granted an order making said persons defendants in the action. Without some satisfactory proof showing that they are proper parties, they should not, against their will, be made defendants in the action, and thus subjected to the expense and trouble of the litigation.

Under all the facts and circumstances of the case, I see no reason, to doubt that the discretion vested in the Special Term was properly exercised in directing the substitution of Henrietta Church as. plaintiff in the action. If new defendants are not brought in, there can be no objection to allowing the order of reference granted by consent of the parties to stand.

The order should be modified by striking out the clause directing “ that Cyrus S. Sholtes and Philena Sholtes be and they are hereby made parties defendant herein, and that the plaintiff, Henrietta Church, be and is hereby authorized to issue a supplemental summons in this action directed to the said Cyrus S. Sholtes and Philena Sholtes, so made defendants herein,” and as so modified affirmed, without costs to either party.

Mayham, P. J., concurred; Herrick, J., not acting.

Order modified, and as modified affirmed, without costs to either party.