131 N.Y.S. 710 | N.Y. App. Div. | 1911
The plaintiff is one of two trustees under a mortgage executed and delivered by the defendant, the Middletown, Unionville and Water Gap Railroad Company, as security for a series of bonds amounting in all to the sum of $250,000. The bonds and the trust mortgage became finally due on December 1, 1910, and no part of the moneys secured by the said mortgage and bonds has been paid.
This action has been brought by the plaintiff alone in his
The question of law involved arises under section 448 of the Code of Civil Procedure, which provides impart as follows: “Of the parties to the action those who are united in interest must be joined as plaintiffs or defendants, except as otherwise expressly prescribed in this act. But if the consent of any one, who ought to be joined as a plaintiff, cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint.”
. The plaintiff herein alleges in his complaint that the reason why the cotrustee, McCullough, was made a party defendant is that said trustee is a director of the defendant mortgagor company, and that thereby he is not qualified to represent the bondholders in an action to enforce their obligations against his company. There is no allegation that McCullough was requested to be a party plaintiff and that he refused his consent.
It is the ordinary rule of law that trustees cannot act separately and that all must unite, as they constitute in law but one person and must join in bringing the action. (Thatcher v. Candee, 3 Keyes, 157, 160). This rule is subject to exceptions. Where a cotrustee has taken a position hostile to his trust it is not necessary that he should join in an action to enforce the trust, and because of such hostility he may be made a party defendant, even without having been requested to join in. the action as a party plaintiff. (Wallach v. Dryfoos, 140 App. Div. 438.) The complaint herein does hot allege that the cotrustee, McCullough, has openly taken a position of hostility to the enforcement of the mortgage, but it does allege that McCullough has dual interests in the subject-matter of the
The order should be affirmed, with ten dollars costs and disbursements, but with leave to the appellant to withdraw its demurrer and to answer the complaint within twenty days on payment of the costs fixed in the order appealed from.
Jenks, P. J., Hirschberg, Thomas and Rich, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements, but with leave to the appellant to withdraw its demurrer and to . answer the complaint within twenty days on payment of the costs fixed in the order appealed from.