Majority
p. 387George W. Carpenter, as Executor, etc., Respondent, v. Carrie M. Mosher, Appellants. Court of Appeals, Feb. 6, 1891.
Headnote
See 56 Hun, 641 , Mem.Appeal. Parties.—It is error to deny motion made in behalf of a person for the dismissal of a complaint and for a nonsuit, where there is no proof warranting his joinder as a party defendant in an action to set aside deed, for fraud, and the finding of the trial court is, in fact, that he has no interest in the premises described in the complaint.
Appeal from a judgment of the general term of the supreme court affirming a judgment entered upon the decision of the court at special term.
John H. Scott, for respondent.
C. O. & L. S. Hulse, for appellants.
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 thé appellant, William A. Mosher, there is no proof warranting his joinder as a party defendant in such an actionj 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.