9 How. Pr. 508 | N.Y. Sup. Ct. | 1854
Upon the case, as made by the papers, I am satisfied that the petitioners are entitled, so far as is necessary to pay their judgment, to the share which would belong to Abner W. Hollister, but for the claims of his creditors, of the surplus proceeds of the- sale of the real estate; that the lien which they acquired upon the real estate, by the seizure of it under their attachment, continues upon that share of the surplus; but I am of the opinion that they cannot be made parties to this action upon their application. Section 122 of the Code is not applicable to the case; it must be construed to extend only to actions for the recovery of specific real or personal property. (Judd agt. Young, 7 How. Pr. R. 79.) If the interest of the petitioners in the fund appears by the answer of any of the present defendants, and a defect of parties is insisted upon, on account of the petitioners not being made defendants, the plaintiffs may, perhaps, find it necessary to make them parties; or if their interest appears, and a defect of parties is not set up, the court may, of its own motion, direct them to be brought in; but unless they are thus made parties, they must resort to an action to enforce their rights, making the present
The petition must be denied; but I think the petitioners ought hot to be charged with costs. They might properly present the question whether they were not entitled to relief under the section referred to of the Code.
