
    Julia A. Groh, Individually and as Executrix, etc., of John Groh, Deceased, Appellant, v. J. George Flammer, Respondent.
    
      Misjoinder of .parties plaintiff—cause of action based on false representations—when no cause of action is alleged.
    
    The complaint in an action brought by Julia A. Groh, individually and as executrix, etc;, of John Groh, deceased, alleged that, in reliance upon false representations made to her by the defendant, she had transferred to' him at an inadequate price her entire holding of the stock and bonds of a certain corporation, and that her testator, John Groh, had also transferred to him seven shares of the stock of the corporation.
    It was not alleged in the complaint that any false representations were made to John Groh, deceased, in order to induce him to transfer the seven shares of stock, or that the false representations made to Julia A. Groh were intended by the defendant to be repeated to John Groh, or that any representations were made to John Groh as coming from the defendant.
    The relief demanded was that the defendant assign to the plaintiff, individually/ all of the stocks and bonds transferred by her to him and that he transfer to ' the plaintiff, as executrix of John Groh, deceased, the seven' shares of stock which were assigned to him by the said John Groh, deceased.
    
      Meld, that there was a misjoinder of parties plaintiff.
    
      Semble, that the false and fraudulent representations having been made only to the plaintiff, individually, and, so far as appeared, not having been communicated to John Groh, deceased, no cause of action was stated in favor, of the plaintiff as executrix of John Groh, deceased.
    Appeal by the plaintiff, Julia A. Groh, individually and as executrix, etc., of John Groh3 deceased, from an interlocutory judgment óf the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of June, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint.
    
      Abram I. Elkus, for the appellant.
    
      Thomas. E Keogh, for the respondent.
   Hatch, J.:

The plaintiff brings this action individually and as executrix of the last will and testament of John Groh, deceased. The complaint in substance avers that the plaintiff Julia A. Groh and her husband were partners in a brewery business; the death of the husband, and the succession to the partnership of her two sons, Michael and John ; the death in 1896 of the son Michael, and the continuance of the business by the surviving partners; the subsequent transfer of the same to a corporation organized for the purpose of taking over the property and conducting the business; the issue of capital stock and mortgage bonds in their respective amounts. Upon the organization of the corporation John Groh was made the president, treasurer and a director, and conducted the business of the corporation. The complaint then avers that the plaintiff had no knowledge of the details of the partnership business or of the corporation; that thé same, in detail of management, had been in the hands of her husband and her sons; that the defendant had been for many years an attorney arid counselor at law, and the legal adviser of her husband, her two sons and herself; that in February, 1897, she consulted the defendant in his professional capacity concerning her rights in the corporation, and requested him to investigate its affairs and take such steps as might be advisable for the protection of her interest therein; that the defendant made such investigation, and in April, 1897, proposed to purchase all of plaintiff’s bonds and stock, which she owned, of the corporation; that, in order to induce such sale, the defendant falsely and fraudulently represented to the plaintiff that such sale and transfer was the best method of promoting and preserving her interest and the interest of her family in the corporation; that in order to protect the plaintiff’s interest, he would take the place of her deceased son, Michael J. Groh, would conduct the business and follow in the footsteps of her said son in caring for her rights and interests, and that he would neither require nor accept a salary as an officer of the corporation; that plaintiff’s son John Groh should remain president, and that the defendant would act solely to further the interest of the plaintiff in the business and relieve her from all care in connection therewith; that having faith in the defendant and relying upon such representations, and being without knowledge of her holdings in the corporation, and induced by the defendant, the plaintiff sold to hirri all her shares of stock and all her bonds for the sum of $150,000, $100,000 of which was paid in cash and securities, and $50,000 in a promissory note, made by the defendant, payable six months from the date thereof. The agreement of transfer is set out in full and made a part of the complaint. By virtue of its provisions- the plaintiff agreed, in addition to the matters above set forth, to procure from her son John Groh seven additional shares of the capital, stock of the corporation; that these seven shares,, in addition to the shares transferred by the plaintiff, gave to the defendant a controlling interest in the capital stock of the corporation. The complaint further avers other acts arid things which the defendant obligated himself to do under the contract, but which are not now material. The complaint further avers that the plaintiff fulfilled her contract, transferred the stock and bonds,‘'and procured the seven shares of stock of her son and transferred them to the defendant. It is further averred, upon information and belief, that the purchase price of the property was less than one-third of its actual value; that after the defendant had acquired the property he abandoned the duty of taking' care of her interest as her attorney and taking the place of her deceased son in the conduct of the business of the corporation; that he had- himself elected president in place of the plaintiff’s son John Groh in 1899, caused a salary of $15,000 a year to be paid to himself, which thereafter he had raised to $25,000 per year ;■ that the defendant has refused to allow the plaintiff or any of .her family representation upon the board of directors; that he has caused his own family to be elected officers of the corporation at large salaries; that he has not declared any dividends out of the surplus earnings of the corporation, which the plaintiff believes to be very large, but has conducted' the corporation for his own personal benefit and has endeavored to prevent the shareholders from participating in the profits of the corporation, and has used the money in' the payment of large salaries to himself and relatives, arid has made large and- arbitrary accounts for machinery; that the defendant has already received in' salary and has expended for machinery a sum much largerthan what'he has paid to the plaintiff for her interest in the property. The complaint then avers the death of her son John Groh ón the 27th of February, 1900; the admission of his will to probate and the qualification by,the .plaintiff Julia A. Groh as executrix thereunder. She offers in the complaint to restore to the defendant all that she has received on account of this transaction, or so much as the court shall determine to be proper. Judgment is demanded that the sale of the stock and bonds be set aside; that the defendant assign to the plaintiff individually all of the stock and bonds transferred by her to him, and that he assign to her as executrix the seven shares of stock which were assigned to him by John Groh, deceased; that the defendant account to the plaintiff for the profits upon the stock and bonds now held by him and to her as executrix for the profits upon the said seven shares of stock, and for all gain which has accrued to him as salary or otherwise.

The defendant demurred to the complaint upon the ground, first, a misjoinder of parties plaintiff; second, that causes of action are improperly united.

The court below sustained the demurrer upon the ground that there was a misjoinder of parties plaintiff.

We are of opinion that the learned court below was correct in the disposition which it made of the demurrer. There is a misjoinder of parties and of causes of action, for the reason that the action seeks to set aside the transfers of property made by plaintiff individually, and also the transfer of the stock made by John Groh, based upon false and fraudulent representations made to Julia A. Groh individually. There is no averment in the complaint that the representations which are claimed to be false and fraudulent were made to any one except Julia A. Groh. On the contrary, the complaint is solely of representations made to her, which induced her to transfer the property which she owned and to procure the transfer of property owned by her son John Groh. It is disclosed by the complaint that she alleges a good cause of action individually against the defendant; but such caiise of action is not joint, in favor of herself individually and as executrix of the will of her son ; consequently, no joint interest in the cause of action is established by the averments of the complaint, (Gray v. Rothschild, 112 N. Y. 668.) It was held in Arkenburgh v. Wiggins (13 App. Div. 96) that a cause of action which had accrued to a testator or intestate could not be united with one accruing to the personal representative after his decease, and this doctrine was affirmed by the Court of Appeals (162 N. Y. 596). It is equally plain that a joint cause of action cannot exist in favor of J ulia A. Groh, as an individual, based upon fraudulent representations to her alone, and also in favor of herself as representative of the estate of her son for a fraud practiced upon him. Such a cause of action is based upon a wrong done to separate individuals, and it is in no sense joint; consequently, there is a clear misjoinder of parties, and if there "was a cause of action stated in favor of the plaintiff, as executrix, there would also be a misjoinder of causes of action. It was held in Bradley v. Bradley (165 N. Y. 183) that where two stockholders acted in unison and were induced by false representations made to one of them, which was intended to influence the action of both, to make a sale of their respective shares of stock under an agreement made by one for both at a consideration far below its actual' value, such persons might be joined as plaintiffs in an action to obtain a rescission of the transfer and for a restoration of the stock. Therein, however,' it clearly appeared that the representation, although made to one, was intended to be to both, in consequence of which the deceit was held to be single in act and utterance and joint in its operation and effect." The present complaint, however, falls short of stating a cause of action within that decision in favor of the plaintiff as executrix- There is no averment in this complaint that any fraudulent representations were made to John Groh to induce him to sell his seven shares of stock ; nor is there any averment showing that the fraudulent representations made to Julia A. Groh were intended by the defendant to be repeated to John Groh, or that such representations induced him to part with his stock, or that, in fact, any representation was" made by Julia A. Groh to John Groh as coming from the defendaqj;, so that there is nothing in this complaint which can bring it within the decision last above noted.

It follows that the determination of the court below was correct, and, therefore, the interlocutory judgment should be affirmed, with costs, with leave to the plaintiff Julia A. Groh to serve an amended complaint within twenty days upon payment of the costs in this court and in the court below.

"Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Interlocutory judgment affirmed, with costs, with leave to plaintiff Julia A. Groh to serve amended complaint within twenty days upon payment of costs in this court and in the court below.  