Majority
p. 909The Harlem Co-operative Building & Loan Association, Resp't, v. John Quinn, Trustee, App’lt. (Supreme Court, General Term, Second Department Filed July 18, 1890.)
Headnote
Foreclosure — Parties—Cestui que trust.A complaint in an action to foreclose a mortgage executed by a trustee is not demurrable on the ground that the cestui que trust was not made a party. A cestui que trust is a proper party, but not ordinarily a necessary party.
Appeal from interlocutory order overruling a demurrer to the complaint.
This action was brought to foreclose a mortgage given by defendant Quinn, as trustee of an express trust, to the plaintiff, a ■co operative building and loan association, to secure a loan of $3,000. The action was brought against the appellant, as the trustee of an express trust under the will of Thomas Connell.
The complaint alleges the making and delivery of the bond and ■mortgage as such trustee ; the advancement of the money to him as such trustee; his failure to comply with the conditions of the bond and mortgage; and demands judgment of foreclosure and sale, and for deficiency, if any.
The defendant demurred to the'complaint on two grounds. 1st, that the defendant’s cestui que trusts were not made parties defendant to the action' 2nd, that the complaint did not state facts sufficient to constitute a cause of action.
The demurrer was overruled with leave to answer on payment ■of costs.
Arthur Furber, for app’lt; J. F. Harrison, for resp’t.
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.
Barnard, P. J., concurs.