
    KEYES et al. v. ELLENSOHN et al.
    (Supreme Court, General Term, First Department.
    November 16, 1894.)
    Defect of Parties—Jurisdiction.
    The omission to join a necessary party does not oust the court of jurisdiction, but merely invalidates the judgment as to the party omitted.
    Appeal from special term, New York county.
    Action by John S. Keyes and Theodore E. Smith, individually and as executors of Antoine Ruppaner, deceased, against Barbara Ellensohn, the town of Altstaetten, the canton of St. Gall, Carl Haselbach, Jr., Ida Haselbach, Clara Senk Haselbach, Anansia Kristof, Christina Kristof (the first name of the two persons last named being fictitious, their real names being unknown to plaintiffs), President and Fellows of Harvard College, Rose A. Gallery, John McArthur, Martha L. Keyes, Alicia M. Keyes, the University of Berne, and the University of St. Gall. From an order denying a motion to-vacate a judgment entered on May 5, 1893, defendants Ellensohn^ and Kristof appeal. Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN, J.
    Isaac N. Miller, for appellants.
    E. C. Perkins, for respondents.
   VAN BRUNT, P. J.

This action was brought to establish the-validity of the testator’s will. It was commenced in February, 1893, and an order for service on nonresidents by publication was obtained. A guardian ad litem was appointed for the defendants described in the complaint as Johann and Christina Kristof, infants under 14 years of age. The case was tried on the 20th of April, 1893, and judgment entered on the 5th day of May following. There were no such persons as Johann and Christina Kristof, but she had one child, Anna Kristof, an infant over 14 years of age. In July, 1893, upon her petition, Samuel B. Sewards was appointed guardian-ad litem, and moved to vacate the said judgment, as irregular, premature, and without jurisdiction, which motion was granted, vacating the judgment as to said Anna Kristof, and giving her leave-to answer the complaint. Anna Kristof thereupon answered the •complaint. The plaintiff then moved for leave to discontinue the action as to said defendant, which motion was granted, and the action was discontinued accordingly. The defendant appellants then moved to vacate the judgment as irregular, as without jurisdiction, and as having in effect been already vacated, and the action discontinued as to all the parties. This motion was denied, and from the order thereupon entered this appeal is taken.

It is claimed that Anna Kristof was a necessary party to the action, and that the discontinuance as to her deprived the court of jurisdiction, and rendered the judgment void. This contention is based upon the language of the section of the Code of Civil Procedure under which this action was commenced. The mere fact that necessary parties are not before the court upon the trial of an action does not •oust the court of jurisdiction, as far as such persons are concerned who were made parties to the action. The distinction between .necessary and proper parties has been too often discussed, and the validity of judgments where, under the rules of law, other parties were necessary, has been too often upheld, to need the citation of •authorities. The only effect of such omission is that the judgment is not binding upon the party who has been omitted. In the discussion of this question, it is not necessary for us to determine whether, within the language of the section referred to, Anna Kristof was ■or was not a necessary party. The order appealed from should be •affirmed, with $10 costs and disbursements. 
      
       This order was affirmed by the general term, and an appeal taken from such affirmance to the court of appeals was dismissed. See 25 N. Y. Supp. 693; 36 N. E. 343, mem.
     