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Daniel Mooney et al v. The N. Y. Elevated R. R. and Manhattan Ry.

would have no power to interfere with it; but the time and the manner of the amendment made at the trial is all that the defendants complain of, and no question of law is involved.

We said in the Koehler case (supra) that where a plaintiff in one of these equity suits conveys the property pending the litigation, he may make a timely motion on notice to the defendant for an order bringing in his grantee, and that when the records is so amended, the trial may proceed as if the conveyance had not been made. We adhere to that view now, but it was not intended in that case to prescribe any rule of practice for the Courts of original jurisdiction, nor was it intended, to question the power of the Court at the trial to order the amendment when the new parties were present asking for it, and the only question to be considered was the right of the defendant to a reasonable opportunity to meet the new issues, if any, arising from the introduction of new parties. If the amendment created any new issues in this case, the defendants' rights were protected by the ruling of the Court allowing an adjournment and permitting any proof to be made that was in any way pertinent to such issue. The only question is to whether a court of equity may, upon the trial, admit new parties to the record when they ask to be heard and when their presence is necessary for a complete determination of the controversy. When all the parties are before the Court, as in this case, we entertain no doubt with respect to the power to order the amendment in the manner and upon the conditions that it did. It was an exercise of discretion by the trial judge in furtherance of justice, and no rule of practice or principle of law was violated. We think there was power in the Court to order the amendment as it did, and hence the order appealed from should be reversed and the judgment of the Special Term affirmed, with costs.

Daniel Mooney et al v. The N. Y. Elevated R. R. and Manhattan Ry.


Order reversed, &c.

Bringing in additional parties who are entitled to be.-Preferred creditors in an action to set aside a general assignment. Chandler v. Powers, I Civ. Pro., 355.

Assignee of a party-Pendente lite.-But the provisions of section 452, Code of Civil Procedure do not apply to the Surrogates Courts Est. William Tilden, decd., 5 Civ. Pro. 449.

Judgment creditors may be brought. Whites Bank of Buffalo v. Farthing, 9 Civ. Pro., 64.

In Equity. To prevent a multiplicity of issues all persons interested in order to proceed final determination of their rights. Turner v. Conant, 10 Civ. Pro. 192.

Foreclosure.-A grantee under an unrecorded deed. Johnston v. Donvan, 12 Civ. Pro. 315.

Action for an accounting.-The assignor or his personal representatives are proper parties defendants. Wells v. Knox, 18 Civ. Pro., 87.

Reversing. Wells v. Knox, 17 Civ. Pro., 59, on the point that assignor is not an necessary party.

A third party has an interest in the subject of controversy as to entitle him to be made a party. Where an action is brought to restrain the defendant from working for such third party although bound under contract to do so, and restricted by same contract from working for any one else. Strowbridge Lithrographic Co. v. Crane, 20 Civ. Pro., 15.

Complaint dismissed.-Anywhere even where the service of a summons on a defendant prevents "a complete determination of the controversy" because of the absence of such defendant. Kaliske v. Weil, 24 Civ. Pro., 248

Corporation. When joined is the real party in interest.

Stockholders.-Are not entitled as matter of right to be brought in. The question is one clearly within the discretion of the Court. Fontana v. The Haskin Wood Vulcanizing Co., 24 Civ. Pro., 354General assignee for benefit of creditors of the maker of a note may on his own application be made a pay defendant. Merchants Nat. Bank v. Hagemeyer, 25 Civ. Pro., 332.

Security for costs.-When a party has an absolute right to be brought in as defendant the Court cannot require security for costs as a condition for granting such right. Herzog v. Tamsen, 27 Civ. Fro., 165.

Matter of Harry B. Chapman.

Gift Causa Mortis.-When it is established the plaintiff cannot be compelled to have an administrator appointed and made a pay defendant. The burden of this procedure is on the defendant. Cosgriff v. Hudson City Savings Institution, 27 Civ. Pro., 263.

Ejectment.-A mortgagee of defendant in ejectment holding a judgment of foreclosure of the land has a right to come in and defend the title without being made a party to the action. Sand v Church, 27 Civ. Pro., 405.

Personal representatives.—When a party to an action dies while the action is pending the action cannot legally proceed to judgment without bringing in his personal representatives. Vietor v. Good man, 29 Civ. Pro., 263; First Nat. Bank v. Shuler, 153 N. Y., 163.

Grantee. The propriety of bringing the grantee as a party even if he consents rests in the discretion of the Court and discretion in the affirmation should be exercised if in a case where it is quite clear that the rights of the original parties cannot be finally disposed of without the presence of the grantee. Stokes v. Man. R. R., 30 Civ. Pro., 177.

Reversal on facts-Practice.-Where under section 1338 the Ap pellate Division intends to base its reversal of a decision of the trial Court upon a question of fact it should be made to so appear in the record of the judgment or order otherwise the findings of the trial Court will stand and will be presumed to include all facts warranted by the evidence which are necessary to support the judgment. Gannon as adm. v. McGuire, 30 Civ. Pro., 18. See also cases cited and note 30 Civ. Pro., 23.





SS 1022, 1361, 2729.


Power of Appellate Division-Duty to order new accounting for


While it may be competent for the Appellate Division, in an accounting proceeding, to reject a claim of either party where its amount

Matter of Harry B. Chapman.

has been definitely fixed, it has no power to determine the facts anew and direct a judgment based upon the facts thus determined. When the Appellate Division finds that facts have been erroneously determined as to an item materially affecting the result, it is its duty to remit the matter to the Special Term for a restatement of the account, instead of attempting to work out a new result from facts, or upon facts not proven.

(Decided April, 1900.)

Appeal from an order of the Third Appellate Division, modifying and as modified affirming an order of the Special Term. The appellant also sought to bring up for review the report of the refree, the appellant's removel as committee, the appointment of a new one, and the order appointing a special guardian for such incompetent.

Arthur L. Andrews, for petitioner Harry B. Chapman.

Charles Irving Oliver for appellant Jeffrey P. Thomas.

MARTIN, J.-Upon the report of a referee appointed to take and state the account of the appellant as committee of the person and property of Nancy C. Warner, an incompetent person, the Special Term made an order by which the committee was charged with the sum of $7,266.87 as being in his hands belonging to the incompetent's estate, and for which he was held liable. It is obvious from the record that in stating this account it was surcharged with the sum of $2,900 which had already been charged, and thus in effect the committee was charged twice with that


Upon appeal to the Appellate Division the Court assumed to correct that error, but unwilling to modify the order by deducting the amount thus charged twice and affirming it as modified, it proceeded to restate the account upon a new and different basis. It held that the principle adopted by the referee was improper, or at least was not the best that could be adopted; that the amount of the fund

Matter of Harry B. Chapman.

that came into the hands of the committee should be treated as principal; that it should be be regarded as bearing interest, or at least so much of it as ought to have been kept invested, and that the referee should have ascertained and charged to the appellant's account the income it ought to have produced. It then determined that the principal was $7,200.30; that $5,100 of this fund was, for the period of twenty-four years, invested in United States bonds bearing five per cent. interest, although the proof was directly to the contrary; that $1,000 was secured by a note of the committee, payable to the incompetent, with interest, and that there was $1,100 of cash in his hands. It, thereupon, found that the part of the fund invested produced an annual income of $315, and that if $400 was left in the hands of the committee for expenses, the remaining $700 should have produced $35, making a total of $350 a year. This was followed by a calculation that $350 a year for twenty-one years would produce $7,350, and that, as the committee reported only $3,517.03 of income, it was $3,832.97 less than the Court assumed it ought to have been. It also decided that the account of the committee should be surcharged with $1,966,48, one-half of that difference, thus making the income. charged to him $5,483.51, which, added to the principal, amounted to $12,683.51. This amount it concluded to charge the committee. The Court then stated that the committee claimed credit for disbursements amounting to $8,580.98, which was allowed by the referee after deducting $1,177.90 for credits in excess of $500 for which there were no vouchers, and held him entitled to credit for only $6,903.08. Manifestly there was an error of $500 in this calculation, because $1,177.90 deducted from $8,580.98 leaves $7,403.08 instead of the amount thus credited.

The appellant, however, contends that the Appellate Division had no authority to make the order granted. The effect of its decision was to reverse the order of the Special Term, and to hold that the principle adopted by

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