Wright v. O'Brien

—We are inclined to think that it would be proper for us to affirm this judgment upon the opinion of Mr. Justice Bartlett; but, since the executrix has made designations within the letter of her alleged power of appointment, we think it will be unwise to formally decide the point until these appointees have been notified, and the record shall show that they have had their day in court. True, the executrix represents them, in a certain sense, perhaps to such an extent that they are and will be bound by the judgment. But, in view of all the circumstances, we think the ends of justice will be more wisely served if we direct that the appointees be made parties to the action before we finally dispose of the case. And, lest there may be some technical objection to their being heard, arising out of their privity with plaintiff as their trustee, we think it wiser that there should be no judgment until they are brought in. We will, therefore, technically reserve the judgment, and order a new trial, to the end that these appointees may be brought in and heard, recommending that the testimony heretofore taken which was deemed immaterial, should be again presented, not because we deem it material, but to the end that every possible view of and interest in the case may be fully presented by the only parties who might be affected by our final decision.

Barnard, P. J,, and Dykman, J., concur.