Duck v. McGrath

160 A.D. 490, 145 N.Y.S. 1040, 1914 N.Y. App. Div. LEXIS 4809

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 1914
• Status: Published

Opinion

Burr, J.:

The sufficiency of the complaint in this action has been considered in Duck v. McGrath (160 App. Div. 482), decided herewith. This action is in equity, and the defendant the Brooklyn Trust Company, which is a trustee under the will of Leffert L. Bergen, deceased, and is in possession of a fund arising from property bequeathed by him to it of the value of more than $200,000, the income of which is now payable to Sarah E. Bergen, his widow, is a proper if not a necessary party thereto, .within, the general rule in equity actions that all persons who are or may be materially interested in the subject-matter of the action are proper parties, to the end that there may be a complete decree binding upon all. (Burns v. Niagara, Lockport & Ontario Power Co., 145 App. Div. 280.)

The order denying plaintiffs’ motion for judgment on the demurrer of said defendant must be reversed, with ten dollars costs and disbursements, and the motion for judgment granted, with ten dollars costs, but with leave to defendant to withdraw said demurrer and to answer over within ten days after service of a copy of this order, upon payment of said costs.

Thomas, Rich and Putnam, JJ., concurred; Jenks, P. J., not voting.

Order denying plaintiffs’ motion for judgment on the demurrer of said defendant reversed, with ten dollars costs and disbursements, and motion for judgment granted, with ten dollars costs, but with leave to defendant to withdraw said demurrer and to answer over within ten days after service of a copy of this order, upon payment of said costs.