Smith v. Belden

35 Misc. 113, 71 N.Y.S. 246

• Court: New York Supreme Court
• Decided: May 15, 1901
• Status: Published

Opinion

Hiscock, J.

The application is denied for the following reasons: If, as claimed by the present parties to this action and as held in Matter of Baudouine, 3 Am. Bank. Reg. 55, the plaintiff has become vested with the right to reach any surplus' in the income of the trust fund in question, the petitioner has no legal title to or interest in the subject-matter of this suit and is not in any way a necessary party to its prosecution or determination. His only interest is that .of a general creditor in the successful prosecution -of the .action and in the disposition of its fruits. It is settled that on account of such interest he should not be made a party in the absence, as is the case upon this motion, of any allegations touching the good faith and diligence of the trustee •for the creditors. Davies v. Fish, 47 Hun, 314.

Even if it should be held that this court had the power to order petitioner to be made a party, I do- not think it should be done in this case until there is some indication of negligence of bad faith upon the part of plaintiff.

If petitioner is right in his claim that he has acquired a lien upon any surplus which may arise in the income of the trust fund, and that the plaintiff upon the other hand has not acquired any right thereto, I still do not see that it is necessary to grant this motion. Petitioner is not a party to, and cannot be, bound or injured by any judgment in this action. It is not necessary that he should be brought in here to protect his interests and claims if they are as he asserts them to be. White’s Bank of Buffalo v. Farthing, 101 N. Y. 344, 348.

The motion is, therefore, denied, with ten dollars costs.

Motion denied, with ten dollars costs.