
    Nathaniel L. Bradley and Clarence P. Bradley, Respondents, v. Peter B. Bradley, Appellant.
    
      Misjoinder of parties—false representations to one, inducing action by both, of two plaintiffs, when sufficient to sustain an action by both.
    
    No misjoinder of parties exists in a complaint which alleges that the defendant, knowing that both the plaintiffs acted in concert in relation to certain corporate stock, separate blocks of which were held by each, and that the determination of either in such matters was adopted by the other, devised a scheme to induce ■a sale by them of the stock, by concealing material facts from, and by making misleading statements to, one of them, and that thereupon the plaintiffs sold .and transferred the stock for one fifth of its actual value, although there is no allegation that a’w representations were made to the other plaintiff, or that his co-plaintiff communicated to him any of the facts which decided him to make a sale and transfer of his shares, or that the determination of one had ever before influenced a sale by the other.
    Parker, P. J., and Smith, J., dissented.
    Appeal by the defendant, Peter B. Bradley, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, ■entered in the office of the clerk of the county of Chemung on the :b7th day of March, 1900, upon the decision of the court rendered ■after a trial at the Broome Special Term overruling the defendant’s demurrer to the complaint. The relief demanded in the complaint was the cancellation of the sale of the stock referred to in the opinion, upon the plaintiffs’ returning the consideration received by them.
    
      Horace McGuire, for the appellant.
    
      Frederick Golli/n, for the respondents.
   Kellogg, J.:

The grounds of demurrer to the complaint were the apparent misjoinder of parties plaintiff and the improper union of causes of action. In short, that there does not appear to be any community of interest alleged in the plaintiffs in the cause or causes of action alleged. It is alleged that each of the plaintiffs was the owner of a separate block of certificates of stock in an incorporated company; that during the three years next prior to the commencement of the action the defendant and one Walter H. Bradley, from time to time, made statements to the plaintiffs, and to each of them, touching the affairs of the company, upon which they relied and acted, and in such matters plaintiffs acted in concert, and the determination of either of the plaintiffs in such matters was adopted by the other; that defendant Peter B. Bradley knew of the reliance and concerted action; that defendant, in December, 1897, devised a scheme to purchase from the plaintiffs the shares of stock owned by each of them ; and, in pursuance of such scheme, the defendant induced the plaintiff Nathaniel L. Bradley to go with him and Walter IT. Bradley and inspect the property of the company, but designedly concealed from the plaintiff Nathaniel L. Bradley facts well known to defendant which very materially enhanced the value of the stock of the company, and made other statements calculated to lead plaintiff Nathaniel L. Bradley to believe that by reason of projected or necessary outlay for repairs and improvements the value of the stock would or might be diminished, and thereupon the plaintiffs sold and transferred the said stock to the defendant at one-fifth of its actual value. The complaint further alleges that Nathaniel L. Bradley was at the time an indorser on the outstanding paper of the company for a large sum, and this fact and his release from liability as indorser were used to influence him to make such sale, and did influence him. It is not alleged that any representations were made to Clarence P. Bradley, or that defendant or Walter H. Bradley had communication with him at any time. It is not alleged that Nathaniel L. Bradley communicated to Clarence P. Bradley any of the facts which determined him to make the sale of his block of stock; bnt the complaint leaves the matter as to the sale of the stock owned by Clarence P. Bradley on the allegation that the plaintiffs in their general determination acted in concert on matters connected with the company and that this was known to defendant — though it is not alleged that the determination of either of the plaintiffs had ever before influenced the other to make a sale of stock, or that the defendant had reason to believe that it would.

Assuming that there are sufficient facts alleged to constitute a cause of action in Clarence P. Bradley, and the parties plaintiff are not improperly joined because of any failure in that regard, it seems to me that this cause of action must depend upon a very different state of facts (which must necessarily he proven on the trial) from those which go to establish Nathaniel L. Bradley’s cause. But I do not see that this would necessarily create confusion at the trial or that facts proven in one case would improperly affect the other. A single scheme is alleged, fraudulent concealment and misrepresentation practiced upon Nathaniel L. Bradley singly with the purpose of obtaining not only his stock but the stock of Clarence P. Bradley. The fruit sought was the stock of both. The means adopted and reasonably counted on to obtain the stock of both was the persuasion of Nathaniel L. Bradley to sell his knowing that the other was dependent upon this. All that transpired to induce Nathaniel L. Bradley to sell would be competent proof, and necessary proof, to establish Clarence’s cause of action, if he has one, and because more Avould be required, not at all pertinent to Nathaniel’s canse, is not a reason Avhy their trial together should be regarded as impracticable or prohibited by the rules of practice in equity cases. Both cases mainly depend upon the facts Avhich go to make up the cause of action in Nathaniel L. Bradley; if he is able to establish none, then Clarence has none.

These plaintiffs have a common interest in establishing the alleged fraud upon Nathaniel, for this is the sole cause of action alleged. I see little, if any, difference here in principle from that adopted touching actions to set aside fraudulent conveyances or fraudulent assignments in which creditors having separate claims may join. In such cases the denial of the existence of a claim alleged in one of the plaintiffs may be made and litigated. In that issue there is no common interest, but in the main issue there is a common interest and that determines the propriety of the joinder. If the main issue of fraud in this case was not common to both plaintiffs, or, in other words, if a separate transaction with each of the plaintiffs had been alleged and a separate state of facts constituting the alleged fraud, or, if this were so alleged that part only of the fraud practiced was common to both, or the cause of action of either depended upon other distinct and separate fraudulent acts, then there could be no joinder. A trial under such circumstances would be impracticable. The proofs in one cause might influence the judgment and injuriously affect the defendant or the cause not dependent on that proof. This- question of joinder of parties in a case in equity is largely a question of practicability. The permissible practice is in its nature elastic. No hard and fast rule governs as in a case at law. There must be a common interest in all the plaintiffs in the principal issue; and the principal issue in a case of alleged fraud should be decisive of the cause of action alleged by each plaintiff. That, I think, is the case of the complaint here, and for that reason the judgment overruling the demurrer should be affirmed, with costs.

All concurred, except Parker, P. J., and Smith, J., dissenting.

Judgment affirmed, with costs, with usual leave to answer.  