
    Edward P. McDonald and Others, Appellants, v. R. Augusta McDonald, Respondent.
    First Department,
    June 28, 1907.
    Practice — amendment bringing in defendant.
    When the time within which a complaint may he amended has not expired, an amendment may be made bringing in a defendant who is shown by the'allegations of the answer to be a proper and necessary party for a complete determination of the controversy.
    Appeal by the plaintiffs, Edward P. McDonald and others, from an order of the Supreme Court, made at the ISTew Yqrk Special Term and entered in the office of the"clerk of the county of ISTew York on the 22d day of March, 1907, denying the plaintiffs’ motion for leave to amend, the complaint by adding the name of Henry S. Kearney as a party defendant.
    
      Edward M. Shepard, for the appellants.
    
      John M. Bowers, for the respondent.
   Lambert, J.:

The motion here under consideration was made after the service of the summons and complaint, and after the service of the answer, but before the time for the amendment of the complaint had expired. The facts set forth in the' answer of the defendant clearly show that Henry S. Kearney is a proper and necessary party defendant. It is there alleged that he was a copartner of the defendant’s husband, and that the property involved in the litigation belonged to the copartnership, and that it had been dealt with in accordance with the partnership agreement, Mr. Kearney having realized a considerable profit from the transaction. On the face of the transaction John E. McDonald was the actual owner, of the property, and the plaintiffs, his heirs at law, liaVe a right to bring in Mr. Kearney and to have it determined whether he has a right to profits aggregating over $20,000 which resulted from a sale of this property. This controversy cannot be determined, with, any practical results to the plaintiffs, without the presence of Mr. Kearney, and under such circumstances it is made the duty of the court to direct him to be brought in. (Code Civ. Proc. § 452; Holly v. Gibbons, 176 N. Y. 520, 530.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and' the motion granted, with ten dollars costs.

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

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