
    Johns S. Keyes et al., Individually and as Administrators, etc., Resp’ts, v. Barbara Ellensohn et al., App’lts, et al., Def’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 16, 1894.)
    
    Parties—Defect of.
    The omission to join a necessary party does not oust the court of jurisdiction, but merely renders the judgment not binding upon the omitted party.
    Appeal from an order denying a motion to vacate a judgment.
    
      Isaac N. Miller, for app’lts; E. 0. Perlcins, for resp’ts.
   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. Seward was appointed guardian ad litem, and moved to vacate the said j udgment, 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 cost and disbursements.  