
    Central Trust Company of New York, as Trustee, Respondent, v. Manhattan Trust Company, Appellant, Impleaded with The West India Improvement Company and Others, Respondents.
    
      Action to set aside an assignment of securities by a mortgagor on the ground, that they were covered by the plaintiff’s mortgage—proper parties thereto, where the assignment is good as to bona fide holders of notes secured by such assignment.
    
    In an action brought by the trustee under a mortgage issued by the West India Improvement Company to set aside an assignment of a quantity of stocks and bonds executed by the West India Improvement Company to the defendant, the Manhattan Trust Company, to secure notes of the improvement company, the Court of Appeals decided that, as between the parties thereto, the stocks and bonds so assigned were covered by the mortgage, but that the defendant trust company was entitled to hold them as security for the payment of such of the notes of the improvement company as were purchased in good faith and for value and in reliance upon the assigned securities after their delivery to the defendant, the Manhattan Trust Company.
    Upon a motion by the defendant, the Manhattan Trust Company, to make parties defendant holders of the notes who did not clearly appear to be within the protection of the decision of the Court of Appeals, it was Held, that an order denying the motion, except as to those holders of the notes who desired to come in and defend, was proper.
    Ingraham, J., dissented.
    Appeal by the defendant, the Manhattan Trust Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on 2d day of April, 1903, granting said defendant’s motion to make Walter Kirkpatrick Brice, as administrator de bonds non of Calvin S. Brice, deceased, and JEtna Powder Company parties defendant, provided they voluntarily appear and adopt the answer of the Manhattan Trust Company, and, upon their failure to do so, denying said motion.
    The motion upon which the order appealed from was made was based upon an order obtained by the defendant, the Manhattan Trust Company, requiring the plaintiff and the other defendants in the action to show cause why ah order should not be made that Walter Kirkpatrick Brice, as administrator de bonis non of the estate of Calvin S. Brice, deceased, and the AEtna Powder Company, respectively, be brought in as parties defendant to the above-entitled action; that a supplemental summons issue to the said Walter Kirkpatrick Brice, as administrator de bonis non of the estate of Calvin S. Brice, deceased, and the ¿Etna Powder Company; that the complaint therein be amended by including as defendants in the title of. said action the names of the said Walter-Kirkpatrick Brice, as administrator de bonis non of the estate of Calvin S. Brice, deceased, and the ¿Etna Powder Company.
    
      John L. Cadwalader, for the appellant.
    
      Arthur II. Van Brunt, for the plaintiff, respondent;
   Laughlin, J.:

The plaintiff is the trustee under a mortgage executed by the West India Improvement Company to secure an issue of bonds of that company aggregating $1,000,000. The West . India Improvement Company was organized to promote the Jamaica railway and after executing the trust mortgage to the plaintiff it made an assignment to the appellant of 53,000 shares of stock of the Jamaica Railway Company and first mortgage bonds to the extent of $30,000 and second mortgage bonds to the extent of $100,000 to secure notes of the improvement company aggregating $1,000,000. The plaintiff, claiming that these shares óf stock and bonds are covered by its trust mortgage, brings this action to set aside their assignment to the appellant. When the mortgage was executed to the plaintiff the securities were not in the possession of the improvement company but were pledged as security for the performance of certain work by that company. When the securities came into possession of the improvement company, instead of delivering them to the plaintiff, it assigned them to the appellant. The issues were referred and tried and the decision of the referee was reviewed in this court and by the Court of Appeals where a new trial was granted. (Central Trust Co. v. West India Improvement Co., 48 App. Div. 147; 169 N. Y. 314.) The effect of the decision of the Court of Appeals is that as between the parties these securities were covered by the trust mortage held by the' plaintiff but that the appellant is entitled to hold them as security for the payment of such of the notes of the improvement company as were purchased in good faith and for value in reliance thereon after the delivery of the securities' to the appellant. Upon the trial before the referee the purchasers or holders of some of these notes were made parties. Some of the notes are held by the administrator of the estate of Calvin S. Brice and others by the .¿Etna Powder Company. It does not appear whether or not they are tona fide holders for value and within the protection of the decision of the Court of Appeals. The plaintiff insists that they are not necessary parties. It is not clear that they are. If they purchased the notes for value on the faith of the assignment after the delivery of the securities to the appellant, then they would be proper parties and the appellant would be authorized to hold the securities for the payment of the notes held by them. The object of the action is to reach the securities which are in. the possession of the appellant as trustee. The trustee will be protected by giving notice to the holders of these notes of the commencement, object and pendency of the action. Then if the holders of the notes claim to have purchased relying upon this assignment as security they may present their evidence through their trustee or they may avail themselves of the benefit of the order made by the court which affords. them an opportunity of voluntarily becoming parties to this action. Whether they do or not, the adjudication then will protect the trustee. If it appeared that these parties were or claimed to be tona fide holders for value, having purchased upon the faith of the assignment after the delivery of the securities to the appellant, that would present quite a different question, but this is not shown.' We are, therefore, of opinion that at this stage of the litigation the court was justified in refusing to direct that the plaintiff bring in the holders of these notes as parties defendant, otherwise than by affording them an opportunity to come in as was done.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

Patterson, O’Brien and McLaughlin, JJ.,. concurred ; Ingraham, J., dissented.

Ingraham, J. (dissenting) :

I think the persons sought to be brought in are necessary parties to a complete determination of the controversy between the plaintiff and the Manhattan Trust Company, as trustees, and that under section 452 of the Code of Civil Procedure the court should have directed them to be brought in as parties to the action. Under the decision of the Court of Appeals, the Manhattan Trust Company, as trustee, is not entitled to the possession of this property as against the plaintiff, unless the holders of obligations who acquired them for a valuable, consideration, after the delivery to the Manhattan Trust Company of the property to'secure the payment "of such obligations and who relied upon such possession' when they paid therefor, have acquired rights superior to the plaintiff. . The right of each of the holders of these obligations must, therefore, depend upon his ability to prove that he was ¿V bona fide holder of the obligation for value, relying upon the actual possession of this property by the defendant trustee. For the purpose of’ determining the right to have the property in the hands of the Manhattan Trust Company applied to the payment of these obligations and thus to determine the whole controversy, I think the holders of the obligations should be made parties to the action so that the final judgment could settle the whole controversy as between the holders of these obligations and the plaintiff and the defendants.

Order affirmed, with ten dollars costs and disbursements.  