The complaint avers that defendant, as trustee, borrowed money, executed a bond and mortgage to secure the same, made default, and prays a foreclosure and sale. The defendant demurs on the ground that the cestui que trust is not made a party defendant. The demurrer was properly overruled. A cestui que trust is a proper party, but not ordinarily a necessary party. Defendant has mistaken his remedy. If, for any reason, the presence upon the record of the cestui que trust as a party defendant was desirable, a motion should have been made that he be brought in. Judgment affirmed, with costs.
10 N.Y.S. 682
Harlem Co-op. Bldg. & Loan Ass’n v. Quinn.
(Supreme Court, General Term, Second Department.
July 18, 1890.)
Mortgages—Foreclosure—Parties.
A cestui que trust, while a proper party, is not ordinarily a necessary party, in proceedings to foreclose a mortgage given by his trustee; and the complaint is not demurrable for defect of parties because of the non-joinder of the cestui que trust; ' the remedy being a motion that he be brought in.
Appeal from special term, Westchester county.
Foreclosure by the Harlem Co-operative Building & Loan Association against John Quinn as trustee of and under the last will and testament of Thomas Connell, deceased. The defendant demurred to the complaint for a defect of parties, in that no cestui que trust was joined with him. From an order overruling his demurrer, defendant appeals.
Argued before Barnard, P. J., and Pratt, J.
Arthur Furber, for .appellant. Harrison & Langdon, for respondent.
Harlem Co-operative Building & Loan Ass’n v. Quinn
10 N.Y.S. 682
Case Details
10 N.Y.S. 682
References
Nothing yet... Still searching!
Nothing yet... Still searching!