Becker v. McCrea — 135 A.D. 704

Majority

p. 704

C. Adelbert Becker, Respondent, and Margaret G. Becker, v . Maggie McCrea, Appellant, Impleaded with Annie Brevoort Eddy and Others, Respondents.

Second Department,

December 3, 1909.

Headnote

Partition—party — second marriage by plaintiff pending action — laches — effect of lis pendens.

Where the wife of the plaintiff in an action of partition died after entry of judgment for the-defendants, and the plaintiff remarried before judgment was reversed and a new trial granted, the second wife, not haying released her dower, is a necessary party, and the court upon proper application must direct that she be'brought in.

Where the defendant’s motion to bring in the second wife as defendant was made in time to enable the desired relief to be obtained, without delaying the trial, and the defendant’s contention is meritorious, her motion should not be denied for laches.'

The fact that plaintiff filed a Us pendens before his remarriage is immaterial since it operated as constructive notice only as to purchasers from the defendants, against whom it w,as indexed.

p. 705

Appeal by the defendant, Maggie McCrea, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 18th . day of September, 1909, nunc pro tuno, as of the 24tli day of June, 1909, denying the said defendant’s motion that an additional party be brought in as defendant. "

Charles II. Tuttle [Brainard Tolies with him on the brief], for. the appellant.

J. A. Young, for the respondents.

This is an action of partition. The defendant McCrea appeals . from an order of the Supreme Court, Westchester county, denying the motion of the said defendant that the present wife of the plaintiff, Lucille Clark Becker, be' brought in as a party defendant.

When the action Was originally commenced, in October, 1904, Margaret Gr. Becker, the then wife of the plaintiff, was a party plaintiff. The action has been once tried. A judgment in favor of the defendants Eddy was reversed on appeal, and a new trial granted. ( 119 App. Div. 56 ; revd., 193 N. Y. 423 .)

Shortly after tins judgment was entered, Margaret Gr. Becker died, and before it was Reversed the plaintiff married his present wife, who, it appears from the moving papers, has not released to her husband her inchoate right of dower.

The plaintiff’s main contention is that his present wife is not a necessary party; and the only paper "read in opposition to the motion was the lis pendens filed by the plaintiff prior to his second marriage. The plaintiff also charges the defendant McCreá with laches in making the application. Considering these objections in the reverse order, the question of laches may be disposed of by a mere statement of facts. The motion for the' order was made under an order to show cause returnable at a Special Term at White Plains on June 24, 1909, at which place and time the case was tobe called for trial. Section 723 of' the Code of Civil Procedure provides that “ The court may, upon the trial; or at any other stage of

p. 706

the action, before or after judgment, in furtherance of justice, * * * amend any process* pleading or other proceeding, by adding or striking out the name of a person as a party, * * * or by inserting an allegation material to the case.” The motion, it would seem, was made; sufficiently early to, enable the defendant to obtain the desired relief without delaying the trial of the action. The motion certainly was not of so doubtful merit that it in itself raised an implication of bad faith on the part of the moving defendant. On the contrary, the defendant’s contention was so meritorious that this court is forced to conclude that her motion should have been granted. The .plaintiff’s suggestion that,the defendant McCrea did not act in good faith in making the application is not consistent with the plaintiff’s own failure to join his present wife as a party plaintiff, as it is conceded he was directed to do by an order of the- court, within eight months of June 7, 1909.

The plaintiff’s present wife has an inchoate right, of dower in an undivided share in the property to be partitioned. Section 1538 of the Code seems clearly to require that she be made a party to the action. The language of that section is, “ * * * every person having an inchoate right, of dower in an undivided share in the property; * * * musí be made a party to an action for a partition.” This is mandatory. (Satterlee v. Kobbe, 173 N. Y. 91 .) This is peculiarly an .action in which the interests of all persons having rights- in the property should be protected. This can be •done under'section 1570 of the Code of Civil Procedure if Are plaintiff’s present wife is before the court. A complete determination of the rights'of the parties to the controversy cannot be had without her presence before the court, except by saving her rights by the final judgment, and thereby leaving, her interests, and claims Outstanding, subject to future disputes as to their extent and validity, and hence a cloud upon the title, to the prejudice of all persons having interests in the property. In such cases section 452 of the Code of Civil. Procedure requires that the court must direct other parties to be brought in so that the controversy may be completely determined.

The lis pendéns filed by the plaintiff, and rélied on by him in opposing the application for.the order appealed from,.is required to be indexed only against the defendants-(Code Civ. Proc. § 1672),

p. 707

and operates as constructive notice to a purchaser or incumbrancer of the property affected thereby from or against a defendant, with respect to whom the notice is so .indexed (Id. § 1671). The defendants set up in their answers demands for affirmative judgments, but did not file notices of the pendency of the action against the plaintiffs, as they perhaps might have done under section 1673 of the Code. But even in that event the present wife of the plaintiff would not have been affected; she is not a party plaintiff, although the plaintiff has been ordered by the court to bring her in as such. Section 448 of the Code authorizes the court, under these circumstances, to make her a party defeiidant.

The order should be reversed, with ten dollars costs and disbursements.

Hirsohberg, P. J., Jenks, Thomas and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.

Cases cited

Becker v. McCrea 119 App. Div. 56 N.Y. App. Div. 1907-04-19 p. 705
Becker v. McCrea 193 N. Y. 423 N.Y. 1908-11-17 p. 705
Satterlee v. Kobbe 173 N. Y. 91 N.Y. 1903-01-06 p. 706