Actions against partnerships.

other incumbrancers are not proper parties, even where a sale of the premises is decreed, as the purchaser at such sale takes the premises subject to the incumbrances. Sebring v. Mersereau, 9 Cow. 344. See Sears v. Hyer, 1 Paige, 483; Wotten v. Copeland, 7 Johns. Ch. 140. See Whitton v. Whitton, 38 N. H. (1 Chand.) 134. The true rule is that no persons are to be made parties except those who have a present interest in the premises. Sebring v. Mersereau, 9 Cow. 344.

Section 4. Actions against partnerships.

a. General partnerships. In actions against partnerships all known partners must be joined as defendants. Wooster v. Chamberlin, 28 Barb. 602. But where credit is given to a firm supposed to consist of a certain number of persons, the persons extending such credit may sue the known partners without joining others unknown at the time of the transaction on which the suit is founded, and whose connection with the firm was in no way notorious or disclosed. Brown v. Birdsall, 29 Barb. 549; Hurlbut v. Post, 1 Bosw. 28; North v. Bloss, 30 N. Y. (3 Tiff.) 374. So the executor of a deceased partner cannot be joined as a party defendant with the surviving partner in an action for a partnership debt, unless it is shown that the surviving partner is insolvent. Voorhis v. Child's Executor, 17 N. Y. (3 Smith) 354; Richter v. Poppenhausen, 42 N. Y. (3 Hand) 373; S. C., 9 Abb. N. S. 263.

b. Limited partnerships. In actions against limited partnerships the general partners only are necessary defendants, and an action may be maintained against them in the same manner as if there were no special partners. But where the name of any special partner is used in the firm with his privity he must be deemed a general partner. 1 R. S. 766, §§ 13, 14. See Ward v. Newell, 42 Barb. 482; S. C., 28 How. 102; Madison Co. Bank v. Gould, 5 Hill, 309; Schulten v. Lord, 4 E. D. Smith, 206.

c. Actions between firms having a common partner. An action at common law could not be maintained by one firm against another firm having a partner common to both, on the principle that no person can be allowed to sue himself, or that the same person could not be both plaintiff and defendant in the same action. Englis v. Furniss, 4 E. D. Smith, 587; S, C., 2 Abb. 333. Such an action could, however, be maintained in equity. But, under the present practice, all distinctions between law and equity being abolished, such an action may be main

Persons in an individual and in a representative character.

tained, whether the cause of action or defense is of a legal or an equitable nature. Cole v. Reynolds, 18 N. Y. (4 Smith) 74; Kingsland v. Braisted, 2 Lans. 17.

Section 5. Persons in an individual and persons in a representative character.

a. In general. It may be laid down as a general rule, that in actions merely personal, for the recovery of money only, defendants primarily and personally liable cannot be joined with others liable only in a representative capacity. Union Bank v. Mott, 27 N. Y. (13 Smith) 633; Gardner v. Walker, 22 How. 405; Voorhis v. Child's Executor, 17 N. Y. (3 Smith) 355. When parties are jointly and severally liable, either for torts or upon contracts, the personal representatives of the deceased parties may be proceeded against by action at the same time with actions against the surviving parties, but it must be by separate actions and not by joining both classes of defendants in one action. Ib. Neither can the executor of a deceased joint debtor be joined as a defendant with the survivor in an action at law on the joint obligation. Voorhis v. Child's Executor, 17 N. Y. (3 Smith) 354; Richter v. Poppenhausen, 9 Abb. N. S. 263; S. C., 42 N. Y. (3 Hand) 373; Fine v. Righter, 3 Abb. N. S. 385. It is not certain that such joinder would be allowable in equity. Thus the executor of a deceased partner becomes liable for a partnership debt, only on proof that the survivor is insolvent, and that the creditor has exhausted his remedy at law against him (Bank of Cooperstown v. Corlies, 1 Abb. N. S. 412); but whether, in an action for a partnership debt, and on a complaint setting forth the inability of the plaintiff to obtain satisfaction from the survivor, the executor of a deceased partner may be joined with the survivor because of his interest in contesting the allegation of insolvency, and for the purpose of adjusting the equities between the partnership estate and that of its members in one action and judgment, is unsettled by the cases. See Voorhis v. Child's Executor, 17 N. Y. (3 Smith) 354; Riper v. Poppenhausen, 43 N. Y. (4 Hand) 68. But executors and parties in an individual capacity may undoubtedly be joined in real actions. Thus, in an action brought against executors to recover a legacy claimed under the will and charged upon the real estate, all persons interested in the residue, as the widow and heirs at law, should be made defendants. Tonnelle v. Hall, 3 Abb. 205. See Trustees of the Theological Seminary of

Parties to fraudulent conveyances.

Auburn v. Kellogg, 16 N. Y. (2 Smith) 83; reversing S. C., 20 Barb. 323; Richtmyer v. Richtmyer, 50 id. 55, 60.

b. Cestui que trust and trustee. Trustees of an express trust may defend without joining the cestui que trust. Mead v. Mitchell, 5 Abb. 92, 106; S. C. affirmed, 17 N. Y. (3 Smith) 210. c. Receiver and owner of trust fund. A receiver must not be joined as a party defendant in an action against the original owners of the trust fund, unless some relief is prayed or some cause of action is shown against the receiver. Arnold v. Suffolk Bank, 27 Barb. 424. But in a creditor's suit, maintained by judgment creditors on their own account, to set aside, as fraudu̟lent, and to declare void a mortgage, a receiver previously appointed may be made defendant on the ground that he will not act, or that he neglects to act, in the premises. Gere v. Dibble, 17 How. 31. See Bennett v. McGuire, 58 Barb. 625.

d. Assignor and assignee. The assignor and assignee must be joined as defendants in a creditor's suit instituted to set aside, as fraudulent, a prior assignment made for the benefit of creditors. Lawrence v. Bank of the Republic, 35 N. Y. (8 Tiff.) 320; S. C., 31 How. 502; 4 Abb. N. S. 134; Beardsley Scythe Co. v. Foster, 36 N. Y. (9 Tiff.) 561 ; S. C., 3 Trans. App. 215; 34 How. 97; Wallace v. Eaton, 5 id. 99; S. C., 3 Code R. 161; Reed v. Stryker, 12 Abb. 47.

Section 6. Parties to fraudulent conveyances. Where a debtor, with intent to defraud his creditors, has conveyed his estate, in separate parcels, to different individuals, all such grantees should be made defendants in an action to set aside such conveyances, although there is no privity between them. It is sufficient to authorize such joinder that there is a privity between each of them and the debtor, and that they have each an interest in the controversy. Reed v. Stryker, 12 Abb. 47; Newbould v. Warrin, 14 id. 80; Durand v. Hankerson, 39 N. Y. (12 Tiff.) 287; Morton v. Weil, 33 Barb. 30; S. C., 11 Abb. 421; Sage v. Mosher, 28 Barb. 287. This rule applies although a part of such grantees are non-residents. Gray v. Schenck, 4 N. Y. (4 Comst.) 460. The judgment debtor is also a necessary party. Lawrence v. Bank of the Republic, 35 N. Y. (8 Tiff.) 320; S. C., 31 How. 502; Beardsley Scythe Co. v. Foster, 36 N. Y. (9 Tiff.) 561; S. C., 3 Trans. App. 215; 34 How. 97; Wallace v. Eaton, 5 id. 99; S. C., 3 Code R. 161. But a party who has innocently accepted a deed of the property for the benefit of the

Non-joinder and misjoinder of parties defendant.

alleged fraudulent grantee, and who has conveyed in accordance with the trust, is not a necessary party. Spicer v. Hunter, 14 Abb. 4.

ARTICLE X.

DEFENDANT'S REMEDY AGAINST ERROR.

Section 1. Non-joinder of parties defendant. It is the right of a party who is sued to require that any other person jointly liable with him for the debt shall be made a co-defendant. The omission of a plaintiff to sue all the joint contractors, in an action on a joint contract may be set up as a defense, and will furnish a complete defense to the suit. Wooster v. Chamberlin, 28 Barb. 602. The remedy of the defendant, against an omission on the part of the plaintiff to join all necessary par ties defendant, is by demurrer where the defect appears upon the face of the complaint, and by answer where it does not so appear. Code, §§ 144, 147; Eaton v. Balcom, 33 How. 80; Brainard v. Jones, 11 id. 569; Scofield v. Van Syckle, 23 id. 97. But before the defendant can demur for want of parties, it must appear that his interest requires that such other party should be made a defendant. Newbould v. Warrin, 14 Abb. 80; Hillman v. Hillman, 14 How. 456. In determining whether a demurrer for a defect of parties is well taken, the rule as given in section 122 of the Code should be applied. If the court can determine the controversy before it without prejudice to the rights of others, or by saving their rights, then a demurrer for non-joinder of such parties is not well taken. But if, on the other hand, a complete determination of the controversy cannot be had without the presence of other parties, then the demurrer is well taken. Wallace v. Eaton, 5 How. 99; S. C., 3 Code R. 161. See Jones v. Felch, 3 Bosw. 63.

Section 2. Misjoinder of parties defendant. The joinder of too many parties as defendants, when there is no misjoinder of subjects, is not a ground of demurrer by any one of them against whom the plaintiff states a good cause of action. New York & New Haven R. R. Co. v. Schuyler, 17 N. Y. (3 Smith) 592, 604. A demurrer will not lie under subdivision 4 of section 144 of the Code for a misjoinder of parties. Richtmyer v. Richtmyer, 50 Barb. 55; People v. Mayor of New York, 8 Abb. 7; S. C., 28 Barb. 240; 17 How. 56; Pinckney v. Wallace, 1 Abb. 82. But if it

Change of parties - By death.

appears upon the face of the complaint that no cause of action is stated in the complaint as to one of the defendants, he may make this the ground of a special demurrer to the complaint under subdivision 6 of that section, as not stating facts sufficient to constitute a cause of action as to him. 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 may be dismissed as to the defendant against whom no cause of action is stated. Palmer v. Davis, 28 N. Y. (1 Tiff.) 242 ; Brownson v. Gifford, 8 How. 389. This will in no way affect the other parties to the action, except that it will impose upon the plaintiffs the necessity of paying the costs of the defendant unnecessarily joined.

a. Death of sole plaintiff under former practice. Under the former practice, the death of one of several plaintiffs before a verdict had been rendered in the action, or between the rendition of such verdict and a judgment thereon, did not have the effect of abating the action, if the cause of action survived to the surviving plaintiffs. So the death of one of several defendants, when occurring before a final judgment, did not abate the action, but, on the suggestion of such death on the record, the action might proceed against the surviving defendants. In the same manner the action might be continued by the surviving plaintiffs. 2 R. S. 386, § 1 (401).

So, if a sole plaintiff died after an interlocutory judgment, and before a final judgment obtained thereon, the action did not abate if it might have been originally prosecuted by the executors or administrators of the plaintiff; but a scire facias might issue in behalf of such executors or administrators against the defendant to show cause why the damages in such action should not be assessed and recovered. 2 R. S. 386, § 2 (402). The same rule applied on the death of a sole defendant at the same stage of the action; and the plaintiff might have a scire facias against the executors or administrators of such defendant to show cause why the damages in such action should not be assessed and recovered. 2 R. S. 387, § 3 (402).