Crooke v. O'Higgins

New York Supreme Court

Crooke v. O'Higgins

14 How. Pr. 154

DecidedApril 15, 1857

StatusPublished

This text of 14 How. Pr. 154 (Crooke v. O'Higgins) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Crooke v. O'Higgins, 14 How. Pr. 154 (N.Y. Super. Ct. 1857).

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Opinion

Clerke, Justice.

In an action on a contract, all persons who have joined in it should be made party defendants; and the non-joinder can be taken advantage of when the defect does not appear on the face of the complaint, by answer, as it formerly could have been by plea in abatement. But, in an action for the foreclosure of a mortgage, although many besides the mortgagor or his co-contractors, whether principal or sureties, are necessary parties: yet I do not agree with the defendant’s counsel, that no valid judgment can be rendered in this kind of action without making a person a defendant, with whom the mortgagor has entered into a written contract to convey the premises. But, although not indispensable, I think it is proper; and, as it is possible some embarrassment may happen to the defendant Shaw, if Gori should not be joined with him ; and, as the Code gives the court great latitude in this respect, I will direct that the latter be made a defendant before a final determination of the case.

Order accordingly—costs to abide event.

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Clerke, Justice.

In an action on a contract, all persons who have joined in it should be made party defendants; and the non-joinder can be taken advantage of when the defect does not appear on the face of the complaint, by answer, as it formerly could have been by plea in abatement. But, in an action for the foreclosure of a mortgage, although many besides the mortgagor or his co-contractors, whether principal or sureties, are necessary parties: yet I do not agree with the defendant’s counsel, that no valid judgment can be rendered in this kind of action without making a person a defendant, with whom the mortgagor has entered into a written contract to convey the premises. But, although not indispensable, I think it is proper; and, as it is possible some embarrassment may happen to the defendant Shaw, if Gori should not be joined with him ; and, as the Code gives the court great latitude in this respect, I will direct that the latter be made a defendant before a final determination of the case.

Order accordingly—costs to abide event.

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Bluebook (online)

14 How. Pr. 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crooke-v-ohiggins-nysupct-1857.