
    Judson G. Wells, App’lt, v. Thomas H. Knox, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 2, 1889.)
    
    1. Assignment fob cbbditobs—Accounting—Parties.
    In an action brought by a creditor to obtain an accounting by an assignee for creditors, the assignor or his legal representatives are proper* but not necessary parties.
    2. Same.
    While the court should require the assignor to be brought in for its own protection where it can possibly be done,.such action is not called for where a good excuse is given,' such as that the assignor is dead and has no legal representatives.
    Appeal from interlocutory judgment and order sustaining demurrer to the complaint.
    
      Louis H. Hahlo, for app’lt; Benno Loewy, for resp’t.
   Van Brunt, P. J.

This action was commenced by the plaintiff, who is a creditor at large of Samuel A. Warner, deceased, to obtain an accounting upon the part of Thomas "H. Knox asassignee of said Warner under a general assignment made by Warner to him.

The complaint set forth the facts on which the plaintiff claims to be a creditor, the assignment, its acceptance by the -assignee, and his qualification thereunder and that the defendant had come into possession of the assigned property, and is now in possession of its proceeds and avails.

The following allegations are then made:

“That since the making and delivery of said assignment the said Samuel A Warner departed this life, and deponent alleges on his information and belief that no executor or administrator of his estate has been appointed.
“ That the subject matter of this action is one of general and common interest to many and numerous persons interested in said, assigned estate, and plaintiff therefore brings this action in his own behalf and of such other persons and creditors as may desire to share in the benefits of this action.”

The defendant demurred to the complaint upon the ground that there was a defect of parties defendant, because neither the assignee nor his legal represetative was made a defendant. This demurrer was sustained at special term, and from the judgment thereupon ■entered this appeal is taken.

The question therefore presented is whether the assignor or his legal representatives are necessary parties to this action without whose presence a complete determination of the issues cannot be had. It is claimed upon the part of the respondent that no such ■complete determination can be had without the presence of the assignor or his legal representative, because the plaintiff is required to prove the debt due from the assignor to him in order to be entitled to call the assignee to an account.

It is to be borne in mind that there are many instances in which persons may be proper parties to an action who are not necessary parties, and that much which has been said upon the subject of making the assignor a party in actions of this character must be viewed in reference to -the fact that a person may be a proper party although not a necessary party. The object of the proceeding upon the part of the plaintiff was not to recover his debt from' his debtor, but to prosecute the lien which he had because of his debt upon the funds in the hands of the assignee, which lien was given by the assignment under which the assignee held the property upon which it was sought to impress this lien. If this was a ' proceeding to recover the debt, as such, against the debtor, undoubtedly the debtor, or his legal representative, would be a necessary party to the action. But, as already suggested, that is not the nature of the relief sought, such relief being merely to reach ■certain property and nothing else.

There is a familiar instance in which the original debtor is not held to be a necessary party to the prosecution of the action. Take the case of a bond and mortgage given by A to B upon property owned by A to secure a debt due from A to B, which property, subsequent to the giving of the bond and mortgage, has been sold by A to C; C assuming the payment of such bond and mortgage. B can commence an action to foreclosure the mortgage against C without making A party. So in the case at bar, as the proceeding is not in the nature of a proceeding to recover a debt but to foreclose a lien, the original debtor is not a necessary party. In .actions of this description, however, the court should always require the assignor to be brought in for its own protection, where it can possibly be done. But where a good excuse is given, as that the assignor is dead and has no legal representatives, then clearly such action upon the part of the court is not called for.

In any event the failure to make an assignor or his legal representatives a party cannot be considered as a ground for demurrer, because the action may proceed to judgment without their presence.

The interlocutory judgment and order appealed from should be reversed and the demurrer overruled and the defendant allowed to answer upon payment of the costs of the demurrer and of this appeal

Bartlett and Barrett, JJ., concur.  