Exceptions to general rule - Legatees, trustees, etc.

might properly have been brought in the name of the husband and wife. Ingraham v. Baldwin, 12 Barb. 9. But as the law now stands, an action of ejectment may be maintained by the wife in her own name, without joining her husband. Darby v. Callaghan, 16 N. Y. (2 Smith) 71.

f. Legatees, devisees and executors. In actions by devisees, for a specific performance of a contract for the sale of lands executed by their testator, the executor of the deceased is a necessary party and must be joined as plaintiff. Adams v. Green, 34 Barb. 176.

g. Trustee and cestui que trust. It is a general rule, that when a fund is in the hands of a trustee which he is bound to distribute to different parties in unequal proportions, all interested in the distribution are necessary parties to an action against the trustee. But when the sum that each is entitled to receive has been ascertained by a proceeding binding on the trustee, each may maintain an action for his proportionate share. General Mutual Ins. Co. v. Benson, 5 Duer, 168.

Section 2. Exceptions to general rule.

a. When one of several plaintiffs refuses to sue. To the general rule that of the parties to the action, those who are united in interest must be joined, as plaintiffs or defendants, the Code makes several exceptions. It provides that, if the consent of any one who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint. Code, § 119. Thus, where an action is brought by a firm against another firm, and one of the members of the plaintiff's firm is also a member of the defendant's firm, on the refusal of the common partner to join with the plaintiff's, he may be made defendant. See Cole v. Reynolds, 18 N. Y. (4 Smith) 74. One person cannot be both plaintiff and defendant in the same action. Methodist Episcopal Church in Pultney v. Stewart, 27 Barb. 553; Sherwood v. Barton, 36 id. 284; 23 How. 533, 544; Richards v. Richards, 2 Barn. and Ad. 451. This provision of the Code was framed in accordance with the old chancery practice, and was a substantial reproduction of one of the rules of practice of the supreme court of the United States. McKenzie v. L'Amoreux, 11 Barb. 518.

b. When the question litigated is one of common or general interest. A second exception to the rule, that all who are united in interest must be joined as plaintiff's or defendants, was added

Exceptions to general rule-Numerous parties.

by the legislature to section 119 of the Code, as originally submitted by the commissioners. It provides that when the question litigated is one of a common or general interest to many persons, one or more of them may sue or defend for the benefit of the whole. It is not essential to the right of one to sue for all thus interested, that the parties should be very numerous or that it would be impracticable to bring them all before the court. McKenzie v. L'Amoreux, 11 Barb. 518. But it is indispensable that the interest involved is common to all. Reid v. The Evergreens, 21 How. 319. To enable a plaintiff to bring a suit in his own right and in behalf of others having a common interest, it is not sufficient to allege that the other parties are so numerous that it would be impracticable to bring them all before the court, but the nature of their common interest must appear to be such as would entitle them, were they all before the court, to maintain the action in their own right or in their own names. Habicht v. Pemberton, 4 Sandf. 657. See Hammond v. Hudson River Iron and Machine Co., 20 Barb. 378.

c. When parties are very numerous. There are cases in which, in consequence of the great number of parties concerned, it would be impracticable to bring them all before the court, and, in order to prevent a failure of justice, the Code provides that one or more may sue or defend for the benefit of the whole. Code, 119. This practice was adopted in accordance with the former practice of the court of chancery, and was probably intended to govern such cases only as would have been the subject of a suit in equity, and would have been within the rule as established by that court. Duffy v. Duncan, 32 Barb. 587; Reid v. The Evergreens, 21 How. 319; Habicht v. Pemberton, 4 Sandf. 657. Independently of the Code, the rule of chancery still exists. Ib. Hammond v. Hudson River Iron & Machine Co., 20 Barb. 378 ; Bouton v. City of Brooklyn, 15 id. 375. It is said that the provision of the Code applies indiscriminately to all actions, whether they involve questions of common interest or not. McKnight v. L'Amoreux, 11 Barb. 518. But it will be found that in all the cases in which equity allowed the court to dispense with the necessity of making the suit absolutely complete, as to parties, there was a right common to all the plaintiffs to be maintained, or an obligation common to all the defendants to be enforced. See Reid v. Evergreens, 21 How. 319; Bouton v. City of Brooklyn, 15 Barb. 375. Thus, a part of the crew of a privateer may

Exceptions to general rule - Numerous parties.

bring a suit against the prize agents, in behalf of themselves and others who have signed the articles, for an account and distribution of the prize money; or a few creditors may maintain an action in behalf of themselves, and of all other creditors of a deceased debtor, for an account and application of his assets to the payment of his debts. So, parties to a trust deed for the payment of debts, are allowed to sue on behalf of themselves and the other creditors named. A legatee may also prosecute in the same form for a settlement of the account of the executor and the payment of all the legatees. The parties, also, of a voluntary association, for public or private purposes, may in like manner sue and defend in behalf of themselves and their associates. Ib. Duffy v. Duncan, 32 Barb. 587; Hammond v. Hudson River Iron and Machine Co., 20 id. 378; McKnight v. L'Amoreux, 11 id. 518. So any individual resident of a village, which is not a municipal corporation so as to assert the general right of the public, may bring an action in behalf of himself and of all others similarly interested, to restrain the perversion of land dedicated to public uses, from the legitimate purposes of such dedication. Cady v. Conger, 19 N. Y. (5 Smith) 256. But where there are officers authorized to act in behalf of a community, no private person, or number of persons, can assume to be the champions of the public, unless the act complained of involves some peculiar damage to the individual interest or interests of the party or parties plaintiff. Doolittle v. Supervisors of Broome Co., 18 N. Y. (4 Smith) 155; S. C., 16 How. 512; Roosevelt v. Draper, 23 N. Y. (9 Smith) 318; Milhau v. Sharp, 27 N. Y. (13 Smith) 611; Ely v. Connolly, 7 Abb. N. S. 8; Thurston v. City of Elmira, 10 Abb. N. S. 119. But although a private individual may not restrain the collection of a tax by injunction, he may, as relator in a writ of mandamus, compel a county treasurer to issue his warrant for the collection of a tax, although the individual has merely an interest common to the whole community. People ex rel. Stephens v. Halsey, 37 N. Y. (10 Tiff.) 344; S. C., 4 Trans. App. 261. So a common-law certiorari may issue on his relation to review and correct items illegally included in the tax levy of his town. People ex rel. Haskins v. Supervisors of Westchester, 8 Abb. N. S. 277; S. C., 57 Barb. 377.

Real party- Non-joinder and misjoinder of plaintiffs.

ARTICLE VI.

REMEDY AGAINST ERROR AS TO PROPER PARTIES.

Section 1. Where the action is not brought by the real party in interest. The remedy of a defendant, when sued by a party other than the real party in interest, is by demurrer, if the defect is apparent on the face of the complaint. Nelson v. Eaton, 7 Abb. 305; reversing S. C., 15 How. 305; Palmer v. Smedley, 6 Abb. 205; S. C. affirmed, 28 Barb. 468; White v. Brown, 14 How. 282; Bank of Havana v. Wickham, 16 id. 97; S. C., 7 Abb. 134. But, where the defect does not appear upon the face of the complaint, the objection may be taken by answer. Bank of Havana v. Magee, 20 N. Y. (6 Smith) 355. But where a plaintiff miscalls himself by a name which represents no person, real or artificial, the remedy of the defendant is neither by answer or demurrer, but by a motion to set aside the service of the summons. Thus, where an individual banker sues in a name importing a corporate character, the defendant, if aggrieved, should move to set aside the first proceeding in the suit. Ib.

Section 2. Where there is a non-joinder of plaintiffs. The rule previously stated applies also to cases of non-joinder. Where there is a defect of parties apparent upon the face of the complaint the defendant may demur, and, where such objection exists but does not appear upon the face of the complaint, it may be taken by answer. Where the defect is apparent upon the face of the complaint, and the defendant fails to demur, the objection will be waived. So the defendant will waive his right to object to a defect of parties not apparent upon the face of the complaint, by an omission to raise the objection by answer. Zabriskie v. Smith, 13 N. Y. (3 Kern.) 322; Code, §§ 141, 147, 148; Gassett v. Crocker, 10 Abb. 133; Van Deusen v. Young, 29 Barb. 9.

Section 3. Where there is a misjoinder of plaintiffs. An improper joinder of parties is not a subject of demurrer, as a defect of parties under subdivision 4 of section 144 of the Code. Allen v. City of Buffalo, 38 N. Y. (11 Tiff.) 280; Peabody v. Washington County Mutual Ins. Co., 20 Barb. 339; Richtmyer v. Richtmyer, 50 id. 55. The defect of parties for which a

demurrer is allowed under section 144 is for a deficiency and not for an excess of parties. Ib. But the defendant is not without a remedy. If there is a misjoinder of parties, or, in other words, if the facts stated in the complaint show no cause of action against the defendants, in favor of one of the plaintiffs, the defendants may demur under the sixth subdivision of section 144, as to such plaintiff, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and, as to such plaintiff, the complaint will be dismissed. If the objection is not raised by demurrer, or does not appear upon the face of the complaint, it may be raised upon the trial, and the complaint will be dismissed as to the plaintiffs, in whose favor no cause of action is shown, and the cause may proceed to judgment as to the rest of the co-plaintiffs as provided in section 274 of the Code. Palmer v. Davis, 28 N. Y. (1 Tiff.) 242; Richtmyer v. Richtmyer, 50 Barb. 55.

ARTICLE VII.

PARTIES DEFENDANT.

Section 1. Who may be defendants in a suit.

a. Foreign governments and officers. A sovereign State, in its political capacity, cannot be sued in the courts of another State or nation for the purpose of enforcing any remedy against it. But such State may, nevertheless, be made a defendant in an action, for the purpose of giving it an opportunity to appear and thus enable the court to determine more intelligently the rights of co-defendants. The joinder in such cases is but an invitation to appear, and, if disregarded by the State, is a nullity. The appearance of a State, or a judgment entered against it, cannot be enforced in the courts of another State. Manning v. State of Nicaragua and the Accessory Transit Co., 14 How. 517; Duke of Brunswick v. King of Hanover, 2 H. L. Cas. 1; Wadsworth v. Queen of Spain, De Haber v. Queen of Portugal, 17 Q. B. 171.

b. Foreign ambassadors, etc. There are certain persons who would, under ordinary circumstances, be proper parties to an action, but over whom the State courts can exercise no jurisdiction. This class includes all ambassadors and foreign ministers who are recognized as such by the president of the United States,