Henshel v. Held
| Decision Date | 29 May 1961 |
| Parties | Harry B. HENSHEL, Plaintiff-Respondent, v. Henry HELD, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
A. Kaplan, New York City, for defendant-appellant.
S. S. Epstein, New York City, for plaintiff-respondent.
Before BOTEIN, P. J., BREITEL, STEVENS, EAGER and BERGAN, JJ.
Order entered on March 27, 1961, which denied defendant's motion for a direction that the plaintiff bring in additional parties defendants as indispensable parties, unanimously reversed on the law, with $20 costs and disbursements to the appellant, and the motion granted with $10 costs. This plaintiff and three others, including the defendant, embarked upon a joint venture. The plaintiff, claiming that the defendant in breach of his duty acquired scret profits from or as a result of the venture, seeks to impress a trust upon the proceeds and asks damages. The defendant's motion that the plaintiff be required to join the other parties to the joint venture as indispensable parties was denied. 'The test of indispensability is such legal unity of interest or joint connection with relation to the subject matter that a separate action involving less than all such persons should be precluded * * * The guiding principle is whether the absentees have such interest in the subject matter before the court that their interests must necessarily be passed on if the controversy is to be settled, or whether a determination in their absence will nevertheless have the element of finality for the protection of those before the court.' China Sugar Refining Co. v. Andersen, Meyer & Co., 6 Misc.2d 184, 185, 152 N.Y.S.2d 507, 509. The rights, duties and obligations of the parties and the missing co-adventurers spring from a single agreement. The assumption that a separate allocation of interest may be made independently of the rights of the non-joined co-adventurers is untenable for their interests cannot be disassociated from that of the parties before us. Nor can the controversy be effectively resolved in their absence. While the plaintiff is seeking relief in his own behalf, it is clear that if there is to be an effective determination of the controversy the presence of the other parties to the joint venture is indispensable for their rights must necessarily be fixed and determined in the action. Civil Practice Act, § 193.
To continue reading
Request your trial
-
People v. Kermit Gitenstein Found., Inc., Index No. 604475/16
...their interests must be passed on and adjudicated if the controversy is to be settled and brought to closure. See, e.g., Henshel v. Held, 13 A.D.2d 771, 216, N.Y.S.2d 41 [1st Dept. 1961]; New Delhi Television Limited v. Nielsen Holdings, N.V., 111 A.D.3d 437, 975 N.Y.S.2d 7 [1st Dept. 2013]......
-
Gaynor v. Rockefeller
...and there is a fatal deficiency of parties defendant in that the necessary parties to such contracts are not joined (Henshel v. Held, 13 A.D.2d 771, 216 N.Y.S.2d 41). The further relief sought by respondents, of judicial supervision of union activities in the manner requested, is not within......
-
Joanne S. v. Carey
...in the absence of the proposed parties, will have the element of finality for the protection of those before the court. Henshel v. Held, 13 A.D.2d 771, 216 N.Y.S.2d 41; China Sugar Co. v. Andersen, Meyer & Co., 6 Misc.2d 184, 185, 152 N.Y.S.2d The State defendants founded their joinder moti......
-
Congress Factors Corp. v. Meinhard Commercial Corp.
...1031, 251 N.E.2d 152 [1969] ), adhered to on rearg. 25 N.Y.2d 692, 306 N.Y.S.2d 692, 254 N.E.2d 919 [1969]; Henshel v. Held, 13 A.D.2d 771, 216 N.Y.S.2d 41 [1st Dept.1961]; Bergdorf Goodman Inc. v. Marine Midland Bank, 97 Misc.2d 311, 411 N.Y.S.2d 490 [Civil Ct. New York Co.1978] ). This na......