Opinion
Argued June 14, 1877
Decided June 22, 1877
Wm. W. Badger, for the appellant.
Thomas H. Barowsky, for the respondent.
The General Term reversed the judgment of the trial court, as appears from the opinion, upon the single ground that Mrs. Senior was not made a party to the action. We concur with the conclusion at which they arrived, as well as the reason upon which it is founded. The opinion of the court fully reviews the authorities bearing upon the question, and those cited by the appellant's counsel are not, we think, in conflict with the views there expressed.
It is well settled, that in the case of a creditor's bill, to reach a chose in action, which is the character of the present action, the judgment debtor is a necessary party, as in manifest from the opinion referred to, and the current of authority is in favor of this position.
Fox v. Moyer ( 54 N.Y., 130), which is relied upon by the appellant's counsel, was not a creditor's bill; and as is shown in the opinion, was plainly to be distinguished from the other cases cited. It does not sustain the appellant's views.
But even although it was not essential that Mrs. Senior should be made a party individually, she had a right, and should be allowed to be heard as the executrix and as the representative of her husband's estate. There are certainly grounds for claiming that the bond and mortgage belonged to that estate, was taken in its behalf, and assigned in that interest.
It is also asserted and urged that the defendant purchased and now holds the mortgaged lands in trust. These facts are sufficient to entitle Mrs. Senior to appear and be heard as a party, and without such appearance as a party to the record, the right of all the parties cannot be fully and finally determined.
The answer sets up, that she is a proper party, and that is enough to present the question as to her being a proper party, as an individual and in her representative capacity as executrix. The question as to what her interest is, can be determined when she is made a party, and properly before the court, and is not necessary to consider at this time. It is sufficient that she represents an estate, and that a question arises as to her interest in the same to require that she be brought in as a party. If Mrs. Senior is brought in and has an opportunity to be heard, and to protect the estate of which she is the executrix, the rights of all the parties can be considered and properly disposed of.
The order of the General Term was right, and should be affirmed, and judgment absolute ordered on the stipulation.
All concur, except RAPALLO, J., absent.
Order affirmed, and judgment accordingly.