Bailey v. Inglee

2 Paige Ch. 278, 1830 N.Y. LEXIS 365, 1830 N.Y. Misc. LEXIS 3

Opinion

The Chancellor.

Persons are .necessary parties when no decree can be made respecting the subject matter of litigation until they are before the court either as complainants or defendants; or where the defendants already before the court have such an interest in having them made parties, as to authorize those defendants to object to proceeding without such parties. There is also another class of cases where persons who are not absolutely necessary as parties may be made defendants at the election of the complainant. Thus, if a trustee has parted with the trust fund, the cestui que trust may proceed against the trustee alone to compel satisfiaction, or the fraudulent assignee may be joined with the trustee, at the election of the complainant.

The case before me is one in which Rhodes was a necessary party, because he was jointly liable with the complainant in the action at law on the note. Inglee and wife therefore had a right to insist that Rhodes and Balestier should be made parties, so as to make the determination complete. (Poore v. Clark, 2 Atk. 515, Breckenridge v. Bullitt, 3 Litt. R. 5.) And if they had not been made defendants, Inglee and wife might have demurred to the bill for want of parties.

The demurrer must be overruled, and Rhodes must pay the costs and answer the bill within thirty days, or an attachment must issue against him.