64 N.Y. 1 | NY | 1876
The joinder of the administratrix of Emmett H. Hollister as a defendant, with the surviving partners of the firm of which he was a member while living, is no valid ground of demurrer to the complaint. It appears from the complaint that the surviving partners are insolvent, and nothing can be collected from them, and when this is averred, the plaintiff may proceed in equity against the surviving partners, and the representatives of a deceased partner jointly. (Lawrence v. Leake Watt's OrphanAsylum, 2 Denio, 577; Parker v. Jackson, 16 Barb., 44, 45.) See also Van Riper v. Poppenhausen (
The objection that the other creditors should have been made parties, or that the action should have been brought on their behalf, is not well taken. The fact that other creditors exist does not appear upon the face of the complaint, and independent of any thing which is apparent, the plaintiffs are the only creditors. Besides, under the act of 1860 (§ 64, p. 595), any creditor of the assignor may compel an accounting.
If there is a defect of parties it must be apparent to entitle a defendant to demur on that account. (Code, § 144.) So, also, if this defect actually exists, if it does not appear upon the face of the complaint, the objection should be taken by answer. (Code, § 147.) The joinder of the different parties presents no difficulty in the way of entering up a proper judgment, and even if the prayer of the complaint is erroneous in asking for a judgment against the survivors of the copartnership, for the balance remaining unpaid, the complaint is not demurrable for that reason. Upon the whole, as the action was of an equitable nature, all of the defendants, who, it appears, were in some way interested, were proper parties. The survivors, as the original debtors, had a right to be notified of the proceedings which affected their interests, as well as the administratrix, as the representative of a deceased copartnership, and the assignee who had the property of the firm in charge, and represented the entire copartnership. Without all of them there would be a want of proper parties. And in this form the rights of all the parties *5 would be fully protected, and the whole controversy in which each of them had some interest be lawfully disposed of.
The judgment was right and should be affirmed, with costs.
All concur; except ALLEN and EARL, JJ., dissenting; CHURCH, Ch. J., not voting.
Judgment affirmed.