#### CITY OF SHELBY, ZEB MAUNEY, Building Inspector for the CITY OF SHELBY, and on Behalf of the CITY OF SHELBY as Its Building Inspector, (and GRIFFIN J. HOLLAND, Single, ELIZABETH CLAYTOR and Husband, JOHN WILLIAM CLAYTOR, DOROTHY HOLLAND, Single, and LAWRENCE HOLLAND and Wife, ROSLIN HOLLAND, Additional Parties Plaintiff), v. W. D. LACKEY and Wife, LILLIAN Z. LACKEY, EVANS LACKEY and Wife, MARY I. LACKEY, ISABEL MOSER and LACKEY PONTIAC, INC.

(Filed 29 October, 1952.)

1. Municipal Corporations § 37—

In an action by a municipality to enforce a zoning ordinance, complaint of individuals, joined as parties plaintiff, wbicb fails to show that such individuals were citizens or property owners of the municipality, or that they would be injuriously affected by the defendants’ alleged nonconforming use, is demurrable for failure to state a cause of action in favor of such individuals.

2. Pleadings § 19b—

Where the complaint fails to state a cause of action in favor of additional parties plaintiff, demurrer should be sustained as to such additional parties, but demurrer to the complaint for misjoinder of parties should be denied.

3. Trial § 29—

A directed verdict may not be entered in favor of the party upon whom rests the burden of proof.

4. Trial § 28—

While in proper instances the court may give a peremptory instruction that if the jury finds the facts to be as all the evidence tends to show to answer the issue as indicated, the court must leave it to the jury to determine the credibility of the testimony, and the failure of the court to do so must be held for error.

Appeal by defendants from *Clement, J.,*August Term, 1952, of CLEVELAND.

Tbis is a civil action instituted by the plaintiffs for the purpose of enforcing the provisions of the zoning ordinance of the City of Shelby and restraining the defendants from continuing to use a lot for business purposes, which lot is classified in the zoning ordinance as residential property. The ordinance became effective 27 May, 1947.

The plaintiffs, Griffin J. Holland, single, Elizabeth Claytor and husband, John William Claytor, Dorothy Holland, single, and Lawrence Holland and wife, Roslin Holland, filed a petition and motion at the January Term, 1952, of the Superior Court of Cleveland County, requesting that they be allowed to become parties plaintiff in this action, and permitted to adopt the complaint theretofore filed in the action by the *370original plaintiffs. Tbe defendants interposed a demurrer to tbe petition and motion. Tbe demurrer was overruled and tbe motion allowed. Tbe defendants appealed to tbis Court and we beld that tbe order making tbe additional parties plaintiff did not impair any substantial right of tbe defendants which would warrant an appeal. *Shelby v. Laclcey,*235 N.C. 343, 69 S.E. 2d 607.

When tbis cause came on for bearing in tbe trial below, tbe defendants demurred *ore tenus*to tbe complaint as to these additional parties plaintiff for that tbe same did not state a cause of action against tbe defendants in behalf of said plaintiffs, and for misjoinder of parties plaintiff. Tbe demurrer was overruled and tbe defendants excepted thereto.

Tbe trial below resulted in a verdict for tbe plaintiffs, and from tbe judgment entered pursuant thereto, tbe defendants appeal and assign error.

*Falls & Falls for appellants.*

*Henry B. Edwards and A. A. Powell for appellees.*

Denny, J.

An examination of tbe complaint filed in tbis action fails to disclose that tbe additional parties plaintiff are in any way interested in tbe subject matter of tbe action, or that they are citizens of tbe City of Shelby, or property owners therein, or that they will be injuriously affected by tbe nonconforming use of tbe defendants’ property for business purposes. Hence, we think, in tbe absence of appropriate pleadings in tbis respect, tbe demurrer should have been sustained as to these additional parties plaintiff. Tbe ruling, however, in so far as it may have applied to a misjoinder of parties, will be upheld.

Tbe defendants except to tbe refusal of tbe court to sustain their motion for judgment as of nonsuit. Tbe exception is overruled as to tbe original plaintiffs.

Tbe defendants also except to and assign as error tbe charge of tbe court which was as follows : “Gentlemen oe ti-ie Juey : There is but one issue submitted to you — Have tbe defendants in violation of tbe Zoning Ordinance of tbe City of Shelby used for business purposes tbe portion of tbe lot described in tbe complaint on tbe North side of West Marion Street, and designated on tbe plat Plaintiffs’ Exhibit 5 ‘Used Car Lot,’ enclosed by a fence? If you find from tbe evidence tbe facts to be as all of tbe evidence tends to show, you will answer that issue yes, and with your permission I will answer it for you. Answer: ‘Yes.’ ”

Tbe exception is well taken and must be sustained. A directed instruction in favor of tbe party having tbe burden of proof is error. *McCracken v. Clark,*235 N.C. 186, 69 S.E. 2d 184; *Haywood v. Insurance Co.,*218 N.C. 736, 12 S.E. 2d 221; *Yarn Mills v. Armstrong,*191 N.C. 125, 131 *371S.E. 416; *House v. R. R.,*131 N.C. 103, 42 S.E. 553; *Manufacturing Co. v. R. R.,*128 N.C. 280, 38 S.E. 894; *Cox v. R. R.,*123 N.C. 604, 31 S.E. 848. And wben a peremptory instruction is permissible, conditioned upon tbe jury finding tbe facts to be as all tbe testimony tends to sbow, tbe court must leave it to tbe jury to determine tbe credibility of tbe testimony. McIntosh’s North Carolina Practice & Procedure, 632; *Bank v. School Committee,*121 N.C. 107, 28 S.E. 134; *Boutten v. R. R.,*128 N.C. 337, 38 S.E. 920; *Kearney v. Thomas,*225 N.C. 156, 33 S.E. 2d 871. This tbe court below inadvertently failed to do.

Tbe defendants are entitled to a new trial and it is so ordered.

New trial.