Reynolds v. Kaplan — 74 N.Y. St. Rep. 99

Majority

p. 99

William Reynolds, App'lt, v. Nathan Kaplan, Individually and as Administrator, etc., Resp't.

(Supreme Court, Appellate Division, Second Department,

Filed April 28, 1896.)

Headnote

1. Parties—Foreclosure action.

To an action for the foreclosure of a mortgage on real estate, where the mortgagor has died intestate, leaving her husband and children, to whom the property descended, the judgment creditors of the husband are necessary parties.

3. Attorney and client—Compensation.

An attorney, in an action to foreclose a mortgage, is not entitled to compensation, as a condition to plaintiff’s right to substitute another attorney, where his failure to bring in certain parties justifies the purchaser in refusing to accept the property.

Appeal from an order imposing, as a condition for the substitution of attorneys by plaintiff, the payment of a certain amount.

William E. Osborne, for app’lt; Horace G. Lansing, for resp’ts.

The action is for the foreclosure of a mortgage of real estate. The mortgagor died intestate, leaving her husband and children, to whom the property descended. It appears that the foreclosure was instituted at the request of the husband of the deceased owner; the plaintiff’s attorney, in a letter to the plaintiff, agreeing that no expense should be incurred by the latter. There were outstanding judgments against the husband. The judgment creditors were not made parties to the action. The action proceeded to judgment and sale. The title was rejected by the purchaser, for the failure to make the judgment creditors tof the husband parties. We think it too plain to justify discussion that the judgment creditors of the husband, the life tenant, were necessary parties to the action.- ©rdinary care required that the attorney should have made such creditors parties. No good title can be given under the decree rendered in this action. The plaintiff will be driven to either a strict foreclosure, or, as probably the wiser course, to apply to vacate the decree and bring the judgment creditors into the suit The services rendered by the attorney 'have therefore been, of no value to the plaintiff. For this reason, the attorney is not entitled to compensation for them.

So much of the order as is appealed from should be reversed, and motion granted unconditionally, with $10 costs and disbursements.