Smith v. Central Trust Co.

40 N.Y.S. 152 | N.Y. App. Div. | 1896

Ingraham, J.:

We think this motion should have been granted.

The action is in equity by a testamentary guardian of two infants to obtain an accounting with respect to the income of certain securities held by the defendant “ in trust:” In such an action “ any person may be made a defendant who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party defendant, for the complete determination or settlement of a question involved therein.” (Code, § 447.) And section 452 of the Code provides that the court must direct a party whose presence is necessary for a complete determination of the controversy, to be brought in. It appears that the property, concerning which this plaintiff has asked the defendant to account, was deposited with the defendant by one George Condit Smith, who held it as trustee; that said Smith is dead, and that William Pennington has been appointed by the chancellor of the State of Hew Jersey to succeed the said George Condit Smith as trustee; and that the said Pennington, as such substituted trustee, is a necessary party to a complete determination of an action for an accounting of the property of the trust estate, is also apparent.

There is nothing in the Code to justify the conclusion that the fact that the non-joinder of the substituted trustee has been pleaded as a defense, prevents the court from directing such a person to be brought in as a party defendant at any time. In fact, the only effect of pleading this as a defense in. this action would be to require the court on the trial to direct that the person be made a party, and adjourn the proceeding until its order had been complied with. Hor should we determine on this motion the question as to the jurisdiction of the chancellor of Hew Jersey to make this appointment. The trust was created under the laws of the State of Hew Jersey, and was to be performed as provided by its law; and the order of a court of competent jurisdiction, directing how that trust shall be carried out, cannot be attacked collaterally.

We think the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.