Byron Wolverton and Others, Appellants, v. James Rogers, Respondent

Byron Wolverton and Others, Appellants, v. James Rogers, Respondent. Second Department, December 23, 1907. Trial — misjoinder of parties plaintiff—general nonsuit improper ‘— objection by demurrer or answer essential. In an action by several land brokers for commissions, a nonsuit as against all is not warranted merely because some of the parties plaintiff failed to prove their employment by the defendant. Where some of the plaintiffs prove their case, a general motion to dismiss should be denied. The defense of misjoinder of parties'plaintiff must be taken by demurrer if it appear upon the face of the complaint, and if not, then by answer, or the misjoinder is waived. Appeal by the plaintiffs, Byron Wolverton and. others, from a judgment of the Municipal Court of the city of ¡New York, borough of Brooklyn, in favor of the defendant, rendered on the 24th day of October, 1906. Benjamin Frindel, for the appellants. Louis Ehrenberg, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The action is for a broker’s commission on the sale of real estate. The evidence is that the defendant employed two of the plaintiffs to sell the property, that they brought him a purchaser on his terms, and that he refused to make the contract. Two other brokers are joined as plaintiffs, because they assisted the plaintiffs in getting the purchase, though not employed by the defendant. At the close of the plaintiffs’ evidence a motion to dismiss the complaint was granted. The motion was not severed as to each set of plaintiffs, but made generally against all. It is now sought to uphold the nonsuit on-the ground that “no interest in common is shown in the plaintiffs against the defendant ”. This was not a ground on which to dismiss the complaint against all. A cause of action was proved in two of them, and- the dismissal was error in respect of them. It was for the defendant to sever his motion. A complaint cannot be dismissed as to all of the plaintiffs because a canse of action has not been made out by some of them. A general motion to dismiss in such a case has to be denied, and should have been denied in this case (Simar v. Canaday, 53 N. Y. 298). ' Furthermore, the Code of Civil Procedure allows a demurrer for a misjoinder of parties plaintiff (sec. 488, sub. 5), which was not the case formerly (Code Proc. of 1848, sec. 144), and provides • that unless the objection be taken by demurrer where it appears on the face of the complaint, or by answer where it does not, it is deemed to have been waived (Code Civ. Proc. secs. 498, 499). Not having objected by answer (for the misjoinder did not appear on the face of the complaint), the defendant was not in a position to move to dismiss because of it on the trial. The judgment should be reversed. ■ Woodward^ Rich and Miller, JJ., concurred; Hirsohberg, P. J.,. not voting. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.