Dahl v. Levenberg — 172 A.D. 919

Majority

p. 919

Second Department,

January, 1916.

Minnie Dahl, Respondent, v. Samuel Levenberg, Appellant.

Headnote

Parties — defendants.

Appeal by the defendant, Samuel Levenberg, from an order of the County Court of Kings county, entered in the Kings county clerk’s office on the 30th day of August, 1915, granting an interlocutory judgment overruling his demurrer to the complaint.

Mo final judgment has been entered, but if, in view of the stipulation of the parties, the order may be deemed such, it should be reversed, without costs, and the demurrer sustained, with leave to plead over on payment of costs. There should be united as plaintiffs all the owners of the mortgage, including the personal representatives of any who may have died. If the consent of any one of such persons cannot be obtained he may be made a defendant, “ the reason therefor being stated in the complaint.”^[1] The complaint is also defective on account of the failure to observe the requirement of section 1639 of the Code of Civil Procedure. Jenks, P. J., Thomas, Carr, Mills and Rich, JJ., concurred. Order of the County Court of Kings county reversed, without costs, and demurrer sustained, with leave to plead over on payment of costs.

* See Code Civ. Proc. § 448.— [Rep.