Duffy v. Rodriguez

The appellant is, to a very small extent, an abutting owner; the southeast corner of the rear of his lot abutting six inches on the northwest corner of the rear of respondent’s premises. The demurrant first contends that the cause of action alleged in the original complaint was based upon chapter 444 of the Laws of 1908, which was repealed two months before the action was commenced, and that the cause of action alleged in the amended complaint is based .upon a different statute, namely, article 12 of the real property law (Consol. Laws, c. 50), which became operative when the law of 1908 was repealed ; that the first action was a nullity and could not be revived, and a valid, action could not be evolved by the filing of an amended complaint under the provisions of a different statute.

When the several statutes of the state were consolidated, chapter 444 of the Laws of 1908 was made article 12 of the real property law. This action res'ts upon a general statute which it was not necessary to plead, but simply the facts which gave to the plaintiff the right to have his title registered. The facts alleged in both complaints, so far as the right of the plaintiff to have his title registered, are identical. The original complaint does not allege the statute under which the action is brought, except as it refers to the “land title registration law.” This is a term which may be stricken out as surplusage or regarded as having been used in characterization of the existing law regulating that subject. The demurrer cannot be sustained on this ground.

The next contention, that the constitutionality of a law may be raised by demurrer, is beyond question the law of this state. It is argued that article 12 of the real property law is violative of the provisions of the federal and state Constitutions. The appellant has no interest in the subject-matter of this action, and for,that reason he cannot litigate the constitutionality of this article of the real property law. A statute is assumed to be valid until some one whose rights it invades complains. People v. Brooklyn, F. & C. I. R. Co., 89 N. Y. 75 , 93; People v. Lowe, 117 N. Y. 175 , 192, 22 N. E. 1016 ; Tyler v. Judges of Court of Registration, 179 U. S. 405 , 21 Sup. Ct. 206 , 45 L. Ed. 252 ; Clark v. Kansas City, 176 U. S. 114 , 118, 20 Sup. Ct. 284 , 44 L. Ed. 392 ; Turpin v. Lemon, 187 U. S. 51 , 60, 23 Sup. Ct. 20 , 47 L. Ed. 70 ; Lampasas v. Bell, 180 U. S. 276 , 283, 21 Sup. Ct. 368 , 45 L. Ed. 527 ; Hooker v. Burr, 194 U. S. 415 , 419, 24 Sup. Ct. 706 , 48 L. Ed. 1046 .

It is next contended that if the action is held to be properly pending, and the statute under the provisions of which it is brought is held to be constitutional, the amended complaint fails to state facts suffi-' cient to constitute a cause of action, and 38 specific grounds are stated under this point. Without specific consideration of these objections; it is sufficient to say: First, that a causé of action under the statute

The appellant next contends that causes of action are improperly united. This contention is based upon the claim that the complaint unites a cause of action to register title with causes of action to register an alleged easement on each side of plaintiff’s property, consisting of a right to maintain a party wall on a portion of such adjoining property. The complaint demands no such relief. The easements are properly alleged as showing the interest of the adjoining owners who have a similar easement in plaintiff’s premises.

It is also urged that there is a defect of parties defendant. In order to sustain a demurrer for a defect of parties,, it must appear that the party demurring has an interest in having the parties joined, or that he is prejudiced by their nonjoinder. Thompson v. Richardson, 74 App. Div. 62 , 77 N. Y. Supp. 202 ; Anderton v. Wolf, 41 Hun, 571 , and citéd cases. The demurrant, having no interest of that character and none in the subject-matter of the action, cannot be heard upon this subject.

The serious question presented by the demurrer is whether it should be sustained as to Rodriguez upon the ground that as to him it does not state facts sufficient to constitute a cause of action, because of its failure to allege any facts showing that he has any interest in the subject-matter or is a necessary party. The statute (section 379) requires that "all persons having or claiming any right or interest in or lien upon the property, or any part thereof, as shown by the examiner’s certificate of title, * * * and such additional parties as may be designated by the court in its order directing the issuance and service of the summons,” shall be made parties. There is no statutory requirement that adjoining owners, not shown by the examiner’s certificate of title to have or claim any interest in or lien upon the property, shall be made a party defendant. The notice of pendency of action is not indexed against abutting owners. Section 382. In the case at bar the examiner’s certificate states the names of the persons claiming interests or rights in the property, and Rodriguez is not named as :such a person. The certificate as a whole shows that the appellant >owns adjoining property which for a distance of six inches abuts on the rear of plaintiff’s property, but does not show that he has or claims any interest in or lien thereon. The order of the court for the issuance and service of the summons does not designate Rodriguez as a party to be served. It seems to follow that the appellant, as an abutting owner merely, is not a necessary party to the action. Section 389 of the statute provides for the protection of the rights of abutting owners, not necessary party defendants under the provisions of section 379, by giving to any person interested in the property, or whose inter

The interlocutory judgment must therefore be reversed, with costs, and the demurrer sustained, with leave to the plaintiff to amend on payment of $30 costs within 20 days. ' All concur.