
    Emma Condit Smith, as Testamentary Guardian, etc., Resp't, v. Central Trust Company of New York, Defendant, William Pennington, as Trusteee, etc., App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    1. Parties—Necessary,
    In an action in equity by a testamentary guardian to obtain an accounting with respect to the income of certain securities held by the defendant in trust, a substituted trustee is a necessary party to a complete determination of such action.
    8. Same—Bringing in defendant.
    The fact that the nonjoinder of a substituted trustee has been pleaded as a defense does not prevent the court from directing him to be brought in as a party defendant at any time.
    Appeal from an order denying a motion to bring in a substituted trustee as a party defendant.
    Adrian H. Joline, for app’lt; Alex. Thain, for resp’t.
   INGRAHAM, J.

We think this motion should have beefl! 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 New 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 apparent. There is nothing in the Code to justify the conclusion that the fact that the nonjoinder 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, if it was good, to reouire 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. Nor should we determine on this motion the question as to the jurisdiction of the chancellor of New Jersey to make this appointment. The trust was created under the laws of the state of New 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 $10 costs and disbursements, and motion granted, with $10 costs.

All concur.  