Opinion
May 21, 1941.
Present — Crosby, P.J., Cunningham, Dowling, Harris and McCurn, JJ.
Order so far as appealed from reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs. Memorandum: It appears upon the face of the complaint that the plaintiff Java Lake Park, Inc., and others, who were not made parties to this action, own Java Lake and certain park lots contiguous thereto as tenants in common. The defendants moved before answering, to compel the plaintiffs to bring in and to make their cotenants parties to this action on the ground that the plaintiffs cannot maintain this action without the presence of such cotenants as parties. The Special Term denied the motion on the theory that the presence of said cotenants was not indispensable to the maintenance of this action. We think that the plaintiffs' cotenants are necessary parties to this action and that the motion to join them as such should have been granted. ( De Puy v. Strong, 37 N.Y. 372; Shepard v. Manhattan R. Co., 117 id. 442; Eckerson v. Village of Haverstraw, 6 App. Div. 102; affd., 162 N.Y. 652.) The cases relied upon by the Special Term are distinguishable upon the facts. The order so far as appealed from should be reversed and the motion should be granted. All concur. (The portion of the order appealed from denies defendants' motion to compel plaintiffs to bring in as necessary parties plaintiff all grantees from plaintiffs of subdivision lots in a nuisance action.)