day of the first publication; and a notice, subscribed by the plaintiff's attorney, and directed only to the defendant or defendants to be thus served, substantially in the following form, the blanks being properly filled up, must be subjoined to, and published with the at " filed with the complaint, in the office of the clerk of service is without § 443. [Amended, 1877.] Where service is made without the Ia.; when State, the papers specified in the last section must be previously made filed; and a notice must be served with the summons, in all respects the State. like the notice required by the last section, except that the words, "without the State of New-York", must be substituted for the words, "by publication ". New. § 444. Proof of the publication of the summons and notice Proof of must be made by the affidavit of the printer or publisher, or his service. foreman or principal clerk. Proof of deposit in the post-office, or of delivery, of a paper required to be deposited or delivered by the provisions of this article, must be made by the affidavit of the person, who deposited or delivered it. Code Pro., § 138, subd. 3; Wait's Code, 178, 179; 1 Wait's Pr. 545. ant when defend. § 445. [Amended, 1877.] Where the summons is served, pur- Defendsuant to an order made as prescribed in this article, and the defend- allowed to ant so served does not appear; he or his representative, on application and sufficient cause shown, at any time before final judgment, must be allowed to defend the action; and, except in an action for divorce, or wherein the contrary is expressly prescribed by law, the defendant, or his representative, must, in like manner, upon good cause shown, and upon just terms, be allowed to defend, after final judgment, at any time within one year after personal service of written notice thereof; or, if such a notice has not been served, within seven years after the filing of the judgment-roll. If the defence is successful, and the judgment, or any part thereof, has been collected or otherwise enforced, such restitution may thereupon be compelled, as the court directs; but the title to property, sold, to a purchaser in good faith, pursuant to a direction contained in the judgment, or by virtue of an execution issued upon the same, shall not be affected thereby. Who may be joined SEC. 446. Who may be joined as plaintiffs. 447. Id.; as defendants. 448. Parties united in interest, when to be joined; when one or more may sue or defend for the whole. 449. Party in interest to sue. Trustee, etc., may sue alone. 450. When married woman is a party. 451. When defendant or his name is unknown. 452. When court to decide controversy, or to order other parties to be brought in. 453. Supplemental summons. § 446. All persons having an interest in the subject of the as plain- action, and in obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly prescribed in this act. tiffs. Id.; as defendants. Code Pro., § 117; Wait's Code, 132, v. Canaday, 53 N. Y. (8 Sick.) 298, 133; 1 Wait's Pr. 88, 110. See Simar 306; Petrie v. Petrie, 7 Lans. 90. § 447. 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; except as otherwise expressly prescribed in this act. Part of 118, Code Pro., with the addition of the last clause. See Wait's Code, 133; 1 Wait's Pr. 123, 124, 137. In an action to recover the possession of real estate in the occupancy of tenants of one claiming title adverse to the plaintiff, the landlord is a neces sary party, and the presence of the tenant is not essential to enable him to litigate the title. Finnegan v. Carraher, 61 Barb. 252; S. C. affirmed, 47 N. Y. (2 Sick.) 493. In an action for an accounting it is proper to make all persons parties who are interested in the subject-matter of the accounting; and it matters not that the interests of the several defendants did not accrue in the same right. Skidmore v. Collier, 8 Hun, 50. So, in an action for the foreclosure of a mortgage, the sale of the premises and satisfaction of the debt secured, all persons having liens upon the equity of redemption are necessary parties. Morris v. Wheeler, 45 N. Y. (6 Hand) 708. In an action to enjoin the city officers from issuing bonds of the city to raise funds by which a board of commissioners are to carry on a public work, the city itself and such board of commissioners are necessary parties. But contractors, land owners, etc., who expect to be paid out of the fund sought to be raised, are not necessary parties. Hurlburt v. Banks, 1 Abb. N. C. 157. Where property of a corporation has been divided among its stockholders before all its debts have been paid, a judgment creditor, after the return of an execution unsatisfied, may maintain an action, in the nature of a creditor's bill, against a stockholder to reach whatsoever was so received by him. And such creditor is not required to bring his suit on behalf of other creditors who may choose to come in, nor need he make all the stockholders parties to the action. Nor is the fact that the debtor is a foreign corporation material. Bartlett v. Drew, 60 Barb. 648; S. C. affirmed, 57 N. Y. (12 Sick.) 587. And see Hastings v. Drew, 50 How. 254. Where two or more railroad corporations are consolidated, and the new corporation assumes the debts and obligations of the original companies, the directors or other officers of the new organization are not necessary or proper parties to an action brought by a holder of preferred and guaranteed stock of one of the old companies to enforce an alleged contract made by it to pay specified dividends upon said stock. If the plaintiff has a cause of action, it is against the new corporation alone, and its official representatives are not necessary parties to a determination thereof, or for the purpose of giving any relief to which the plaintiff may be entitled. Chase v. Vanderbilt, 62 N. Y. (17 Sick.) 307. In general, where the particular controversy can be completely determined without prejudice to the rights of the parties not made defendants, they are not necessary parties thereto. Wills v. Simmonds, 8 Hun, 189. united in when joined: or more § 448. Of the parties to the action, those who are united in Parties interest must be joined as plaintiffs or defendants, except as other interest, wise expressly prescribed in this act. But if the consent of any to be one, who ought to be joined as a plaintiff, cannot be obtained, he when one may be made a defendant, the reason therefor being stated in the may sue complaint. And where the question is one of a common or general interest of many persons; or where the persons, who might be made parties, are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. or defend for the whole. Party in interest to sue. Trustee, sue alone. tion as himself. Nor can such an action be maintained without making the corporation a party. Smith v. Rathbun, 66 Barb. 402; Gray v. New York and Virginia Steamship Company, 3 Hun, 383. See Young v. Drake, 8 id. 61. § 449. [Amended, 1877.] Every action must be prosecuted in the name of the real party in interest, except that an executor or etc., may administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A person, with whom or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section. Code Pro., part of § 111, together with 113. See 1 Wait's Pr. 89; Wait's Code, 111, 113; Hubbell v. Lerch, 62 Barb. 295; S. C. affirmed, 58 N. Y. (13 Sick.) 237. An action is properly brought in the name of the principal partner alone, for work, labor, materials and services furnished to the defendant, although the contract was made by the nominal partner with the defendant, and a bill rendered to him in the name of the firm. Bendel v. Hettrick, 3 J. & Sp. 405; S. C., 45 How. 198. An action to rescind the sale of a farm made to a lunatic, and to cancel the satisfaction of a mortgage given by him, is properly brought in the name of the committee of such lunatic. Fields v. Fowler, 4 N. Y. Sup. Ct. (T. & C.) 598; S. C., 2 Hun, 400. Where the official bond of an administrator, given to the people as nominal obligees, has been assigned by the surrogate, to be prosecuted under the act of 1837 (Laws of 1837, ch. 460), an action can be maintained thereon, by the assignee, in his own name. Cridler v. Curry, 44 How. 345; S. C., 66 Barb. 336. See Hallahan v. Herbert, 57 N. Y. (12 Sick.) 409. C delivered to the plaintiff a negotiable promissory note, upon his undertaking to collect it at his own expense, and upon its collection, pay to C $600; and it was held, that the plaintiff was the party in interest, and could maintain an action upon the note. Eaton v. Alger, 57 Barb. 179; S. C. affirmed, 47 N. Y. (2 Sick.) 345. Where A, an agent, at the request of B, his principal, gave his check to C to discharge a debt from B to C, it was held, that if C had a good claim against B he could enforce payment of the check against A. Fish v. Jacobsohn, 2 Abb. Ct. App. 132; S. C., 1 Keyes, 539. An assignee of a chose in action, holding the legal title by written assignment, valid upon its face, is "the real party in interest," although others may have an ultimate beneficial interest in the proceeds, and even if he would be liable as their debtor, under his contract with them, for the amount realized. Allen v. Brown, 51 Barb. 86; S. C. affirmed, 44 N. Y. (5 Hand) 228; Meeker v. Claghorn, id. 349; Greene v. Niagara Fire Insurance Company, 6 Hun, 128. A cause of action ex delicto is not extinguished by the recovery and satisfaction of a judgment against a stranger, in nowise joined in liability with the defendant, for the full amount of the damages claimed, nor is the plaintiff estopped thereby. The adjudication only acts as an estoppel between the parties thereto, or those in privity with them. Atlantic Dock Company v. Mayor, Aldermen and Commonalty of the City of New-York, 53 N. Y. (8 Sick.) 64; Dusenbury v. Callahan, 8 Hun, 541, 544. An agent of a mowing machine company, who contracts and sells mowing machines for the company, is a "trustee of an express trust," and may sue on the contract in his own name. Davis v. Reynolds, 48 How. 210; S. C. affirmed, 5 Hun, 651. Where, by a policy of life insurance, the sum insured is made payable to the "assured, his executors, administrators and assigns," for the benefit of a third person, an action thereon is properly brought in the name of the personal representative of the assured. Greenfield v. Massachusetts Mutual Life Ins. Co., 47 N. Y. (2 Sick.) 430. One jointly interested with others in a claim, who, with the authority and consent of the others, employs an agent to collect the claim and to ac count to him therefor, stands in the relation of trustee to the other claimants, and an action is properly brought in his name alone against the agent to married § 450.* In an action or special proceeding, a married woman When appears, prosecutes, or defends, alone or joined with other parties, woman is as if she was single. Substituted for Code Pro., § 114. The section is framed in general accordance with the ruling of the court in Foster v. Conger, 61 Barb. 145; S. C., 42 How. 176. See Bogert v. Gulick, 65 Barb. 322; S. C., 45 How. 385; a party. defendant name is § 451. Where the plaintiff is ignorant of the name or part of When the name of a defendant, he may designate that defendant, in the or his summons, and in any other process or proceeding in the action, by a unknown. fictitious name, or by as much of his name as is known, adding a description, identifying the person intended. Where the plaintiff demands judgment against an unknown person, he may designate that person as unknown, adding a description, tending to identify him. In either case, the person intended is thereupon regarded as a defendant in the action, and as sufficiently described therein, for all purposes, including service of the summons, as prescribed in article second of the last title; and for that purpose, an unknown person is deemed not to be a resident of the State. When the name, or the remainder of the name, or the person, becomes known, an order must be made by the court, upon such notice and such terms as it prescribes, that the proceedings already taken be deemed ainended, by the insertion of the true name, in place of the fictitious name or part of a name, or the designation as an unknown person; and that all subsequent proceedings be taken under the true name. Substituted for § 175, and a part of 135, Code Pro. See 1 Wait's Pr. 128, 469; 5 id. 32, 47, 113; Wait's Code, 170, 333; Sandford v. White, 56 court to contro to order parties § 452. The court may determine the controversy, as between When the parties before it, where it can do so without prejudice to the decide rights of others, or by saving their rights; but where a complete versy, or determination of the controversy cannot be had without the presence other of other parties, the court must direct them to be brought in. And to be where a person, not a party to the action, has an interest in the sub- in. ject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment. brought |