
    Emma Condit Smith, as Testamentary Guardian of Louise Condit Smith and Sally Barnes Smith, Infants, Respondent, v. Central Trust Company of New York, Appellant.
    
      Accounting as to a trust fund—a substituted trustee is a necessary pa/rty—effect of pleading his non-joinder as a defense—the jurisdiction of the chancellor of New Jersey cannot be attacked collaterally— Code of Civil Procedure, § 447.
    In an action brought by the testamentary guardian of two infants to obtain an accounting as to the income of certain securities held “in trust” by the defendant, a trust company, it appeared' that the property in question was deposited with the defendant by George Condit Smith, since deceased, who held it as trustee, and that William Pennington had been duly appointed by the chancellor of the State of New Jersey, where the trust was created and where it was to be performed, the successor of Smith as trustee.
    
      Reid, that William Pennington, as substituted trustee, was a necessary party to a complete determination of the action;
    That the fact that the non-joinder of the substituted trustee had been pleaded as a defense to the action did not prevent the court from bringing him in, the only effect of such a pleading being that it would require the court to adjourn the proceeding until the substituted trustee had been brought in ;
    That the court would not determine, upon a motion to make the substituted trustee a party, the jurisdiction of the chancellor of New Jersey to make the appointment, as the order of a court, of competent jurisdiction could not be attacked collaterally.
    Appeal by tbe defendant, tlie Central Trust Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18tli day of May; 1896, denying its motion to bring in William Pennington as' trustee' under the last will and testament of Sally L. D. B. Smith, deceased, as party defendant in the action.
    
      Adrian H. Joline, for the appellant.
    
      Alex. Thain, for the respondent.
   Ingraham, J.:

We think this motion should have been granted.

The action is in equity by a testamentary guardian of two infants to obtain an accounting with respect to the income of certain securities held by the defendant “ in trust:” In such an action “ any person may be made a defendant who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party defendant, for the complete determination or settlement of a question involved therein.” (Code, § 447.) And section 452 of the Code provides that the court must direct a party whose presence is necessary for a complete determination of the controversy, to be brought in. It appears that the property, concerning which this plaintiff has asked the defendant to account, was deposited with the defendant by one George Condit Smith, who held it as trustee; that said Smith is dead, and that William Pennington has been appointed by the chancellor of the State of Hew Jersey to succeed the said George Condit Smith as trustee; and that the said Pennington, as such substituted trustee, is a necessary party to a complete determination of an action for an accounting of the property of the trust estate, is also apparent.

There is nothing in the Code to justify the conclusion that the fact that the non-joinder of the substituted trustee has been pleaded as a defense, prevents the court from directing such a person to be brought in as a party defendant at any time. In fact, the only effect of pleading this as a defense in. this action would be to require the court on the trial to direct that the person be made a party, and adjourn the proceeding until its order had been complied with. Hor should we determine on this motion the question as to the jurisdiction of the chancellor of Hew Jersey to make this appointment. The trust was created under the laws of the State of Hew Jersey, and was to be performed as provided by its law; and the order of a court of competent jurisdiction, directing how that trust shall be carried out, cannot be attacked collaterally.

We think the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  