
    Knickerbocker Trust Company, as Trustee, Respondent, v. Oneonta, Cooperstown and Richfield Springs Railway Company and Others, Defendants, Impleaded with Daniel M. Lounsbury and Others, as Executors, etc., of John W. Lounsbury, Deceased, Appellants.
    Third Department,
    March 7, 1906.
    Parties — objection to defect of parties defendant, must be taken by demurrer or answer—proper practice stated — objection cannot be made by motion;
    -When a defect of parties appears upon the face of the complaint the-defendant may demur thereto, and if the defect does not appear upon the face of the complaint, the objection may be taken by answer. A failure to take such objectio'n by demurrer or answer is a waiver of the defect. (Code Civ. Proc. §§,488, 498,499.) But even though the objection be so waived the court on its own- motion may direct parties to be brought in if a complete extermination of the controversy cannot be had without their presence. (Code Civ. Proc. § 452.)
    Bufe an objection to defect of parties must be made by demurrer or answer and cannot be made by motion.
    Appeal by the defendants, Daniel M., Lounsbury and others, as executors, etc., ¡of. John W. Lounsbury, deceased, from an order of the Supreme Court, made at the Otsego Special Term and entered in the office of the clerk of the county of Otsego on the 9th day of’January, 1906, denying the said defendants’ motion that, certain other persons be made parties defendant in this action. _ - This is an action to foreclose a mortgage made by the defendant Oneonta, Cooperstown and Eiclifield Springs Eailway Company to the plaintiff, as trustee, tó secure the payment of bonds of such company. The appellants are the owners of some of such bonds and have intervened as parties defendant herein. They interposed an answer, among other things, alleging a defect of parties defendant in that certain other persons, naming them, were owners of some of the bonds and necessary and proper defendants, and that without their presence a complete determination of the controversy could not be had. Subsequently the appellants moved at Special Term to require the plaintiff to make such persons parties defendant herein. From an order denying such motion this appeal is "taken.
    
      
      Henry C. Henderson and William A. Davidson, for the appellants.
    
      Charles E. Hotchkiss and Joseph F. Collins, for the respondent.
   Cochrane, J.:

The motion was properly denied. Section 488 of the Code of Civil Procedure provides that where there is a defect of parties appearing on the face of the complaint the defendant may demur thereto. Where such defect does not appear on the face of the complaint the objection may be taken by answer; and if such an objection is not taken either by demurrer or answer the defendant is deemed to have waived it. (Code Civ. Proc. §§ 498, 499.) Even if the objection is not taken by demurrer or answer the court must on its own motion in a proper case where a complete determination of the controversy cannot be had without the presence of other parties direct them to be brought in. (Code Civ. Proc. § 452.) “ Construing sections 452 and 499 together, their meaning is that a defendant, by omitting to take the objection that there is a défect of parties by demurrer or answer, waives on his part any objection to the granting of relief on that ground, but when the granting of relief against him would prejudice the rights of others, and their rights cannot be saved by the judgment, and the controversy cannot be ^ completely determined without their presence, the court must direct them to be made parties before proceeding to judgment.” (Osterhoudt v. Board of Supervisors of the County of Ulster, 98 N. Y. 243; Steinbach v. Prudential Ins. Co., 172 id. 476.)

Whether the parties sought by the appellants to be brought into the action were proper or necessary parties was a question to he determined by the court on the trial of the action. Such question was hot properly raised by motion. The appellants pursued the proper practice in raising such question by answer, and were at liberty on the trial to litigate the issue thus raised, at which time the court would have properly disposed of the question having reference to the facts as then established.. A defendant, however, cannot by motion dictate to a plaintiff whom the latter shall make defendants, thereby subjecting the plaintiff to the burden and perhaps the costs of a litigation with some third party which may possibly prove to be unsuccessful. Plaintiff has a right to select his own defendants, subject to the right of a defendant to raise the objection by demurrer, or answer that the proper parties are not before the.court. Plaintiff may then, unless he prefers to bring in such parties, litigate with the defendant ..the question as to the propriety of the presence of such parties.

The order should be affirmed/ with ten dollars costs, and disbursements.

All concurred.

Order affirmed, with, ten dollars costs and disbursements.  