Getty v. Spaulding 58 N.Y. 636

Robert P. Getty et al., Respondents, v. Henry F. Spaulding et al., Appellants.

Where, pending an action in the Supreme Court, one or more of several co-plaintiffs transfer his or their interest to the others, it is within the power "and discretion of the court to allow those succeeding to the interests to continue the action in their own name. (Code, § 121.) And an order to that effect is not appealable to this court.

Whether, in such case, any objection which could have been made to an *637improper joinder of plaintiffs, had the suit been continued in the names of the original plaintiffs, can be insisted upon, guare.

(Argued June 2, 1874;

decided June 19, 1874.)

Plaintiffs’ complaint set forth a cause of action for fraud in a contract'for the purchase of lands and asked to have the contract rescinded. Upon the trial it appeared that a rescission was impossible and the complaint was dismissed. The judgment was reversed by the Commission of Appeals and new trial ordered. An order was then granted allowing plaintiffs to amend complaint by setting up further allegations of fraud and asking to charge defendants as trustees, and requiring them as such to account for and restore what they had unlawfully obtained. Seld, that the amendment was within the power of the court to grant, in its discretion (Code, § 173), as were also the terms, and that the order was not reviewable here.

This was an appeal from an order of General Term, affirming a Special Term order allowing plaintiffs to amend the summons and complaint. (Reported below, 1 Hun, 115; 3 N. Y. S. C. [T. & C.], 174.)

The original complaint alleged, in substance, that the firms of R. P. Getty & Son, J. A. Amelnng & Son and J. H. Holcomb, individually (the members of which firms, together with Holcomb, were the plaintiffs), were each induced to subscribe $5,000 to an agreement for the purchase of oil lands in Pennsylvania by fraud of some of the defendants, which subscriptions they paid. They asked to have the contract rescinded. It appeared upon the trial that a rescission was impossible as the parties could not be restored to their original status. The complaint was dismissed and judgment entered for defendants, which was affirmed by the General Term but was reversed in the Commission of Appeals. (See 54 N. Y., 403.) The plaintiffs Robert P. and Samuel Getty, composing the firm of R. P. Getty & Son, upon affidavit showing, among other things, that since the commencement of the action they had purchased and taken assignments of the interests of the other plaintiffs, moved that the suit be continued in their names, and the names of their coplaintiffs be stricken out of the summons and complaint; also -that the complaint be amended by setting forth various other allegations of fraud developed upon the first trial. The motion was granted upon payment of twenty dollars costs. Held. *638that the order was within the discretion of the court and not reviewable here, as above stated.

John E. Develin for the appellants.

Samuel Hand for the respondents.