
    Rachel N. Ducas, Respondent, v. Benjamin P. Ducas, Appellant.
    First Department,
    May 3, 1912.
    Husband and wife — suit to set aside separation agreement on ground of fraud — complaint — parties defendant —demurrer.
    Where a husband and wife and a third party as trustee entered into a separation agreement whereby the husband covenanted to pay a certain sum monthly _to the trustee for the support and maintenance of the ■wife and for the support and education of them son, and the trustee also covenanted to indemnify the husband against any claim for the support of the wife or the support and education of the infant, the trustee and the infant are necessary parties to a suit brought by the wife to set aside the agreement on the ground of fraud.
    Appeal by the defendant, Benjamin P. Ducas, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of February, 1912, upon the decision of the court, rendered after- a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.
    
      
      Edward W. Hatch, for the appellant.
    
      Amos H. Evans, for the respondent.
   McLaughlin, J.:

Action between husband and wife to set aside a separation agreement on the ground of fraud. The agreement is annexed to and made apart of the complaint. It is between the defendant as party of the first part, plaintiff as party of the second part, and one Guggenheimer as trustee, party of the third part. It provides that the parties of the first and second part shall live separate and apart from each other until''the death of either one; that neither will at any time sue or suffer the other to be sued in an action for separation for living separate and apart from the other; that neither will compel the other to live with him or her; and that neither will disturb or molest the other. The custody of an infant son is awarded to the mother, subject to certain rights of the father, and the husband agrees that he will pay to the trustee named in the agreement the sum of $4,000 per annum for the maintenance and support of the wife during her life, and $2,000 a year for the maintenance, support and education of the son during his minority — such payments to be made in equal monthly installments on the first day of each month. The wife agrees to accept the provisions therein made in lieu of any and all other claims or provisions for her support or the support, maintenance and education of the ¡son; she and the trustee covenant and agree with the husband to indemnify and save him harmless from any other claim or liability accruing after the date of the agreement for her support and for the support, maintenance and education of the son.

The defendant demurred to the complaint upon two grounds: (a) That there is a defect of parties defendant in that Guggenheimer, the trustee, is not made a party; and (b) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled and defendant appeals.

The Code of Civil Procedure (§ 452) provides that “The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others or by saving them rights; but where a complete determination of the controversy cannot he had without the presence of other parties, the court must direct them to he brought in.” It is a general rule in equity that all persons interested in the subject-matter of an action should be made parties in order to prevent a multiplicity of actions and secure a final determination of their respective rights. (Osterhoudt v. Board of Supervisors, 98 N. Y. 239.) All persons whose rights may he affected by the judgment should he made parties. (Mahr v. N. U. F. Ins. Soc., 127 N. Y. 452; First National Bank v. Shuler, 153 id. 163.)

In Lord v. Lord (68 Hun, 537) it was held that where an agreement of separation, made by the husband and wife and a trustee, contained a covenant on the part of the husband to pay certain annual sums to the trustee for the wife’s support, and the trustee agreed to indemnify the husband for the wife’s debts, the wife could not maintain an action against the husband without the presence of the trustee as a party.

In Galusha v. Galusha (138 N. Y. 272), which was an appeal from a judgment of the late General Term affirming a judgment in favor of defendant sustaining a demurrer to the complaint in an action to set aside a separation agreement and for other relief, it was held that the trustee named in the agreement was a necessary party to the action. The court said, referring to the opinion delivered on a former appeal in the same case (116 N. Y. 635): That decision is authority for two propositions which must be accepted as the law of this case: First, that the deed of separation cannot be annulled in an action to which the trustee is not a party * *

By the agreement here under consideration the payments were to be made not to the wife, hut to the trustee for her benefit, as well as for the benefit of the son. If the husband had failed to make the payments as provided in the agreement, then the one to enforce the same would have been the trustee, and, if the plaintiff should procure a judgment in this action without the presence of the trustee and the infant, it is difficult to see what protection it would he to the trustee if he were called upon to enforce the agreement for the benefit of the son. The son certainly has an interest in the agreement, and it cannot be set aside without his having an opportunity to be heard.

The trustee also has an interest because he covenanted to ' indemnify the husband against any claim for the support of the wife, or thei support and education of the infant. He is also — being a party .to the agreement — entitled to be heard upon the question of fraud.

The judgment appealed from, therefore;, is reversed, with costs, arid the demurrer sustained, with costs, on the first ground only, with leave to the plaintiff -to serve an amended complaint on payment of costs in this court and in the court below.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  