
    Morris S. Thompson, as Sole Surviving Acting Trustee under the Last Will and Testament of Ebenezer H. Pray, Deceased, and Others, Respondents, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants.
    
      Blevated railroads of New York city protected from separate suits by owners ofindi- ■ vidual interests — a defect of parties must be raised by answer or demurrer— the court itself may order parties to be brought in—when its refusal to do so is cured by the decree.
    
    The fact that the objection that there is a defect of parties plaintiff (it not having been taken either by answer or demurrer) is, under section 499 of the Code of Civil Procedure, deemed to have been waived, does not deprive the court of the power to bring in new parties, where the interests of those not made parties are involved, or the judgment to be entered must necessarily affect their interests.
    In actions brought against the elevated railroads of Hew York city to recover damages for the taking of easements, and to obtain an injunction, it is the policy of the court to protect the defendants against separate suits by owners of individual interests.
    Upon the trial of such an action, brought by a trustee of the title to the premises in question, it appeared that under the terms of the will by which the trust was created, the life tenant of the premises and the remaindermen, who were not made parties to the action, were proper if not necessary parties.
    The decree therein, however, directed that unless the trustee obtained deeds from the life tenant and remaindermen, thereby securing the extinguishment of all • interests in the easements taken, the injunction provided for should not become effectual.
    
      
      Mild, that the defendants, who had not taken the objection of a defect of parties by demurrer or answer, were not, in view of these provisions of the decree, prejudiced by the failure of the trial court to require the life tenant and remaindermen to be made parties to the action.
    Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the- 25th day of November, 1896, upon the decision of the court rendered after a trial at the New York Special Term.
    This action was brought to enjoin the maintenance and operation of the defendants’ elevated railroad in front of premises to which the original plaintiff, Thompson, held title as trustee, and to recover the damages done to such premises because of 'such maintenance and operation of the railroad.
    
      William JI. G-odden and Julien T. Demies, for the appellants.
    
      E. A. .Hibbard, Jr., for the- respondents.
   Patterson, J.:

The premises involved in this action consist of two lots of ground and the buildings thereon erected, which lots have a frontage of fifty-one feet on Third avenue and. a depth of sixty feet, and are known as Nos. 102 and 104 Third avenue, the lot No. 102 being' the corner lot at Thirteenth street. In 1876 the premises belonged to one Ebenezer H. Pray, who died seized of the- same on the eighteenth of May of that year. He left a last will and testament by which he devised to his executors the premises in question upon trusts, as follows, viz.: T.o pay over the net income of No. 104 Third avenue to his daughter, Mary A. Squire, during her lifetime, and, upon her death, to convey the same to her issue in equal shares; and as to No. 102 Third avenue, to pay over the net income thereof to Catharine S. Hojton during her life, and, upon her death, to convey the premises to her lawful issue. At the time of the commencement of this suit, Thompson, as the sole executor and trustee under the will, was the only party plaintiff. . The testator, Ebenezer H. Pray, authorized his executors to sell and convey any or either of the above-named lots and buildings, with the consent of the person during whose lifetime the trust was to continue, and directed that the proceeds of the sale of each parcel should be invested and reinvested in • certain securities for the benefit of the particular beneficiary of the trust, connected with that parcel. The action was begun during the'lifetime of both the eestuis que trust. The rights of the remaindermen were not before the court on the original pleadings. Jt^appears that, before the action was tried, Catharine S. Hort-tiin died, leaving two children, both of full age, to whom no formal' conveyance had been made by the executor, of the premise/No. 102 Third avenue, and it appearing that the fee of such premises had become vested in them under the will of Mr. Pray, and that since the 8th of November, 1894, they had received the rents, issues and profits of the premises, an order was duly .made bringing them in as parties plaintiff, and a supplemental complaint setting forth the rights and demands of the additional plaintiffs was served, and in that supplemental complaint they claimed that they were entitled to rental damages accruing since the 8th of November, 1894, and to an injunction, and that they were authorized and had power to give good title to the easements used by the defendants in case an injunction should be decreed and the defendants should desire to acquire such easements. Neither the persons entitled in remainder to the premises No- 104 Third avenue nor Mrs. Squire are parties to the action, nor was any proceeding ever taken to bring them in. When the case came on for trial, and before the introduction of any proof, counsel for the defendants moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action either at law or in equity, and also moved for a stay of .the trial of the cause until the plaintiffs should bring before the court proper parties, upon the ground that upon the face of the complaint there was a defect of parties as to the property No. 104 Third avenue, it being insisted that the' remaindermen, as well as Mary A. Squire, the beneficiary of the trust as to No. 104, should be brought in as parties ; Mary A. Squire being a necessary party, it was contended, because the power of sale given by the will was one which could be exercised by the trustee only with her consent. The court refused to dismiss the complaint or to postpone the trial to compel the plaintiffs to bring in the additional parties, and the first question arising on this appeal is as to the correctness of the ruling of the court upon that subject.

The allegations of the complaint were ample and appropriate to the statement of a cause of unction inhering in the plaintiffs, but it sufficiently appeared to the <3purt upon the trial that Mrs. Squire and the remaindermen were so iñ-ioerested in the property that their presence as parties to the suit migM\be necessary to enable the defendants to get in their interests andSsfates in the. easements through a decree if one should be made in favdr^of the plaintiffs. It is undoubtedly the policy. of the court in actions of this, character to protect the defendants against separate^ suits by owners of individual interests. (Bach, v. El. Rway. Co., 14 N. Y. Supp. 620; Shepard v. Manhattan R'way Co., 117 N. Y. 442; Pegram v. Elevated R. R. Co., 147 id. 144.) Brit although .it may have been a fight of the defendants to have Mrs. Squire and the remaindermen brought into the action, the law provides the method by which that right shall be enforced and that end attained, and unless that method is pursued the positive declaration of the law is that the objection to the want of parties is waived.If the defect appears upon the face of the complaint the objection must be taken by demurrer. If it does not so appear, it must be set up by ■ answer; and section 499 of the Code of Civil Procedure enacts that if the objection' is not taken in either of the ways indicated the defendant as deemed to have waived it. That provision of the law is decisive of the right of the defendants to insist upon the objection. In this case the right was lost — but that fact does not deprive, the court of its power to direct pai'ties to be brought in where their presence is necessary to a full determination of the action, -or where, in furtherance of jitstice, additional parties in interest should be brought in. We recently had occasion to consider that subject in the case of Elias v. Schweyer (13 App. Div. 337), where it is declared to be the duty of the court-, notwithstanding the waiver by the defendant, to bring in parties under certain circumstances. That duty should be exercised wherever the interests of those not made parties to the action are involved or the judgment to be entered must necessarily affect their interests. But that does not impose upon the court- the duty of granting an application of the defendants to bring in parties where the aúght to bi’ing them in has been lost; As was remai’ked in the case of Osterhoudt v. Bd. Suprs., etc. (98 N. Y. 239), in construing the sections of the Code relating to the duty of the court to bring in new parties, the meaning of the sections “ is that a defendant, hy omitting to take the objection that there is a defect of parties by demurrer or answer, waives on his part any objection to the granting of relief on that ground; but when the granting of relief against him would prejudice the rights of others, and their rights cannot be saved by the judgment, and the controversy cannot be completely determined without their presence, the court must direct them to be made parties before proceeding to judgment.” In the case at bar, Mrs. Squire and the remaindermen were proper, if not necessary, parties, and it would have been proper had they been represented on the trial, but so far as the defendants are concerned, it is apparent from the decree that their rights are not jeopardized, because the provisions of that decree are such that the injunction therein provided for is not to become effectual as to the premises No. 104 Third avenue, unless the plaintiff procures and delivers to the defendants a conveyance executed by Mary A. Squire of her interest in the easements taken, and it is further provided that if the defendants elect within a certain time to pay the value as found of the interest of both the life tenant and the remaindermen in the easements, the plaintiff shall procure and -tender to the defendants a conveyance executed by himself and Mary A. Squire and the remaindermen, and that, in default of such release or conveyance being furnished, the injunction shall not issue. These provisions of the decree protect the defendants in every right they have and fully provide for the extinguishment of all interests in the easements taken by the defendants in the construction and operation of their road in front of the premises No. 104 Third avenue. With these conditions annexed to the decree, the burden of clearing the whole title to the easements is thrown upon the plaintiff Thompson. Everything may be accomplished under the decree that would have been accomplished had the life tenant and the remaindermen bfeen made parties to the record, and with the case in that situation it would be idle to send it back to have the action reconstituted merely to accomplish the same object. If the releases are not procured there will be no molestation of the defendants in the operation of their road in front of the premises in question.

Concerning the subject of the amounts awarded by the court for fee value and for damages to rental value, in view of the conflicting evidence in the case, we do not feel called upon to disturb the findings of the judge at Special Term. The amounts fixed seem upon the whole evidence to be reasonable.

An exception was taken at the trial to the admission in evidence of certain entries from a book kept by one Bisco, who at one time was an agent who collected the rents of the properties. It is unnecessary to pass upon the correctness of the ruling,, for the same evidence' was subsequently given on the trial by the witness Thompson, who received from Bisco his checks for amounts of rent collected by the latter from the tenants of the premises.

The judgment should bp affirmed, with costs.

Rumsey, Williams and Parker, JJ., concurred; Van Brunt, P. J., dissented.

Judgment affirmed, with costs.  