
    First National Bank of the City of Brooklyn, Appellant, v. Alexander Wright, Defendant, Impleaded with Annie E. Nelson and Isabella E. Reilly, Respondents.
    
      Defeat of parties in a creditors suit — the death of the judgment debtor does not prevent the hearing of a demurrer alleging it.
    
    Where, in a creditor’s suit; demurrers are interposed on the ground that there is a defect of parties, in that the immediate grantee of the judgment debtor—by whom the property in question was conveyed to the judgment debtor’s wife (since deceased), whose two children and the judgment debtor are made parties defendant — was a proper and necessary party to the action, the case should not be stricken from the calendar because of the death of the judgment debtor, where the demurrers are separate, the issues raised between the demurring children of the deceased wife and the plaintiff being such as could be disposed of irrespective of the presence or absence in the action of the judgment debtor.
    Appeal by the plaintiff, the First Rational Bank of the city of Brooklyn, from an order of the. Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 2d day of December, 1898, striking the case from the calendar.
    The action was brought by a judgment creditor to set aside a conveyance of certain property made by Alexander Wright, the judgment debtor, to one James McKinley, by whom it had been conveyed to Eliza A. Wright (the wife of the judgment debtor), who had left two children who, with Alexander Wright, were made parties defendant.
    The defendants demurred to the complaint “ on the ground that it appears on the face of the complaint that there is a defect of parties defendant, in that the plaintiff has not made James McKinley and Agnes McKinley, who are proper and necessary parties to the cause of action alleged in said complaint, parties defendant herein.”
    
      Ira Leo Bamberger, for the appellant:'
    
      Alfred Ely, for the respondents.
   Patterson, J.:

The order striking this case from the calendar of the court must be reversed. The cause was upon the Special Term calendar on the 17th of November, 1898. Issues of law raised by demurrer were involved. It was a creditor’s action brought against .Alexander Wright and Annie E. Nelson, who had jointly and severally demurred to the complaint, and Isabella E. Reilly, who had separately demurred, the ground of each demurrer being the same. It was alleged in the complaint that Alexander Wright, the judgment debtor, had been the owner of the real estate described in the complaint; that he had conveyed it to one James McKinley without consideration and fraudulently ; that McKinley conveyed it without consideration to Eliza A. Wright, the wife of Alexander Wright; that Alexander Wright had continuously remained in possession and apparent ownership and enjoyment of the property ; that prior to the commencement of the action Eliza Wright died intestate, leaving her surviving her husband, Alexander Wright, and two children, namely, Annie E. Nelson and Isabella E. Reilly. The demurrers were upon the ground that it appeared upon the face of complaint that there was a defect of parties, consisting in the nonjoinder of James McKinley and his wife. It is recited in the order appealed from that the cause had been on the day calendar of the the Special Term, and adjourned from time to time until the day first above mentioned, when it was suggested that Alexander Wright had died in July, 1888; and thereupon, on motion, the cause was stricken, not only from the day calendar, but as the order may be interpreted, from the general calendar of the court.

As the demurrers of the defendants Nelson and Reilly were separate and raised issues between those parties and the plaintiff, which could be disposed of irrespective of' the presence or absence of Wright in the suit, the order was erroneous.. Those separate demurrers simply went to the proper constitution of the suit as against the demurrants. The subject of the power to render a judgment upon the merits of the case without the heirs or personal representatives of Alexander Wright being before the court, was not involved. Wright’s conveyance, even if fraudulent as to creditors, was good as against himself. The title having been conveyed by McKinley to Mrs. Wright, and she having died intestate, it would seem that Alexander Wright’s relation to the property was only that of a tenant by the curtesy in possession, which tenancy, of course, would cease with his death. On the naked allegations of the- complaint, therefore, there was no reason why the issues of law on the separate demurrers should not have been heard and disposed of when the case was called on the day calendar.

The order must be reversed, with costs, and the case restored to the calendar.

Van Brunt, P. J., Barrett, Rumset and O’Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the case restored to the calendar. •  