O'Hayer v. De St. Aubin

24 A.D.2d 604, 262 N.Y.S.2d 225, 1965 N.Y. App. Div. LEXIS 3594

Opinion

In an action by an income beneficiary and remainderman of a trust against the trustee: (a) to annul and set aside defendant’s sale to himself of stock which had been part of the trust principal; (b) to remove defendant as trustee and appoint another in his place; (e) to require defendant to account; and (d) for other equitable relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester Countv, entered December 24, 1964, as denied his cross motion to dismiss each of the causes of action stated in the complaint on the ground that the Supreme Court cannot or should not exercise jurisdiction over the subject matter and that the court should relinquish its jurisdiction in favor of the Superior Court of Rhode Island. Such denial was “without prejudice to [an] appropriate application for joinder of additional parties”. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. Defendant contends that the action should not be permitted to continue in the absence of certain contingent remaindermen who were not subject to the jurisdiction of the court. In our opinion, under the circumstances of this case the nonresident contingent remaindermen are not persons who should be joined pursuant to the statute (CPLR 1001, subd. [a]). Moreover, even if they were such persons, justice requires that the court permit the action to proceed in their absence (CPLR 1001, subd. [b]). (For opinion at Special Term, see 44 Misc 2d 786.) Beldoek, P. J., TJghetta, Christ, Rabin and Benjamin, JJ., concur.