38 A.D. 360 | N.Y. App. Div. | 1899
The action is brought for the foreclosure of a mechanic’s lien against premises formerly owned by the defendant Thomas B. King and thereafter conveyed by him to one H. C. Bailey, .who conveyed them to the defendant Mary T. C. King, the wife of Thomas. The demurrers raise the question whether Bailey is a necessary party.
The primary object of a suit of this character is to enforce a lien against the premises.. All persons having an interest therein, and only such, are necessary parties. The complaint alleges that, after the plaintiff’s work was performed, the defendants, with the fraudulent intent to embarrass, hinder and delay the plaintiff in the collection of the money due to her, conveyed the premises to Bailey, and that he on the same day reconveyed them to the wife and that such conveyances are fraudulent and void as against the plaintiff and constitute no bar or defense to her lien. The prayer for judgment is that the plaintiff be adjudged to have a valid lien on the premises and that the same be sold, and if it shall be adjudged that the plaintiff has no lien, that she shall have a judgment against the defendants personally.
As the demurrers are to the entire complaint they cannot be sustained, provided there is any cause of action in the complaint against either of the defendants. There is such a cause of action as against
The Code of Civil Procedure (§ 447) provides that any person-may be made, defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is & necessary party for the complete determination or settlement of a question involved therein. The question is not whether a person charged with a fraud resulting in' injury to the plaintiff and against whom a judgment is demanded must be made a party, nor whether such a person could not on his motion be made a party to protect himself. The question is .simply whether Bailey has or claims to have any interest in the controversy or in a personal judgment against either of the defendants. It is clear that as he has divested himself of the title by his conveyance to the wife and no personal claim is made against him, he cannot be said to have any interest in-the premises, and the controversy is solely whether the plaintiff has a lien on them. The complaint does not specifically allege that Bailey was guilty of fraud in the conveyance to the wife, although it does allege that the conveyances were made without consideration and are fraudulent and void as against the plaintiff.
The learned justice at Special Term sustained the demurrers on the authority of Martin v. Walker (12 Hun, 46) and National Broadway Bank v. Yuengling (58 id. 474). As these cases are clearly distinguished in the concurring opinion of Mr. Justice. Cullen, I do not consider it needful to refer to them.
The interlocutory judgments should be reversed, and' judgments directed for the plaintiff on the demurrers, with costs, with leave to the defendants to withdraw demurrers and serve answers on payment of the costs of one demurrer and of this appeal.
All concurred.
This action was brought to foreclose a mechanic’s lien and to declare a conveyance from the defendant Thomas. B. King to one
“ The appellant also insists that the original bill was defective for want of parties in not making the bankrupt a party. This objection is 'not even made in the bill of review, and was not made in the. original cause; and, if it had been made, .in our judgment it would not have been a valid objection. The bankrupt had no interest to-be affected, except what was represented by his assignee in bankruptcy, who brought the suit. As to the bankrupt himself, the conveyance was good; if set aside, it could only benefit his creditors. He could not gain or lose, whichever way it might be decided.” The latest case on this subject (First National Bank v. Shuler, 153 N. Y. 163), while still adhering to the old doctrine of the necessity of making the judgment debtor a party to a creditor’s bill, seems to-recognize the exception to the rule in cases where the plaintiff has-a lien on the property and seeks only to remove fraudulent obstruction. In Wait on Fraudulent Conveyances (§ 129) there will be. found a very full discussion of this question, and all the authorities are there collated. We agree with Hr. Wait: “The best-reasoning of the authorities seems- to establish the rule that the-debtor’s presence as a.defendant is superfluous in suits brought, against fraudulent alienees to annul specific covinous conveyances.” This is, at least, equally true of one who has .been only an intermediary and has no present interest in the property. The plaintiff’s, suit, so far as the branch of it under discussion is concerned, is simply an action to set aside a fraudulent obstruction to her lien.
All concurred.
Interlocutory judgments reversed, and judgment directed for the. plaintiff on demurrers, with costs, with leave ■ to .the defendants to - withdraw demurrers and serve answers within twenty days, on payment of the costs of. one demurrer and of this appeal.