
    Thomas F. Duffy, Respondent, v. Thomas F. Shirden and Others, Defendants, Impleaded with Salvador Rodriguez, Appellant.
    Second Department,
    July 29, 1910.
    . Beal property — action for registration of land title — complaint not necessary to plead statute — demurrer — action begun under previous statute and continued under Consolidated Daws — raising constitutional question by demurrer — abutting owner not affected cannot raise-constitutional question—demurrer for failure to state cause of action — allegations as to easements — demurrer for defect of parties — when abutting owner not proper party.
    The complaint in an action for the registration of real estate under chapter 444 of the Laws of 1908 and article 12 of the Real Property Law need not set out the statute, which is general; it is sufficient to plead facts which give the plaintiff the right to have his title registered.
    An amended complaint to compel the registration of lands under article 12 of the Real Property Law is not subject to demurrer because the action alleged in the original complaint was based on chapter 444 of the Laws of 1908, which statute was repealed when article 12 of the Real Property Law became operative.
    The constitutionality of a statute may be raised by demurrer.
    But one who has no interest in the subject-matter of an action based upon the statute cannot attack its constitutionality. T.hus in an action under the Land Title Registration Law, an abutting owner cannot attack its constitutionality.
    Ror can he assert that the complaint fails to state a cause of action.
    The complaint in an action to compel the registration of a land title may allege easements in a party wall on each side of the plaintiff's property which give him the right to maintain a portion of the walls on adjoining property.
    In order to sustain a demurrer for a defect of parties, it must appear that the demurrant has an interest in having the parties joined or that he is prejudiced by their non-joinder.
    An abutting owner is not a necessary party to an action to compel the registration of a land title/ where be is not shown by the examiner's certificate of title to have or claim any interest or '• lien upon the property and he is not designated by the order of the court as a party to be served. Hence, if he be made a party, the complaint, as to him, is subject to demurrer, as no cause of action against him is alleged.
    Section 385 of the Real Property Law should not be so construed as to deprive a party of the right to a demurrer to a complaint in an action to register a land title, even though he be improperly joined as a defendant.
    Appeal by the defendant, Salvador Bodriguez, from, an interlocutory judgment of the Supreme Court in favor of the plaintiff,. entered in the office of the clerk of the county of Kings on the 11th day of January, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendant’s demurrer to the complaint in a proceeding for the registration of a title to real property Under the provisions of article 12 of the Beal Property Law (Consol. Laws, chap. '50; Laws of 1909, chap. ■ 52).
    
    
      William Bell Wait, Jr. [Henry Crofut White and Rufus B. Cowing, Jr., with him on the brief], for the appellant.
    
      M. E. Finmgan [Sidney V. Lowell with him on the brief], for the respondent.
    
      
       Since amd. by Laws of 1909, ehap. 305, and Laws of 1910, chap. 627.-- [Rev.
    
   Rich, J.:

The appellant is, to a very small extent, an abutting owner, the southeast corner of the rear of his lot abutting six inches on the. northwest corner of the rear of .respondent’s premises. The demur-rant first contends that the cause of action alleged' in the original complaint was based upon chapter 444 of the Laws of 1908, which was known as the Land Title Begistration Law, and which was repealed two months before the action was commenced, and that the cause of action alleged in the amended complaint is based upon a different statute, namely, article 12 of the Beal Property Law,' which became operative when the law of 1908 was repealed; that the first action was a nullity and could not be revived, and a valid action could not be evolved by the filing of an amended complaint under the provisions of a different statute. When the several statutes of the State were consolidated, chapter 444 of the Laws of 1908 was made article 12 of the Beal Property Law. This action rests upon a general statute which it was not necessary to plead, but simply the facts which .gave to the plaintiff the right to have his title registered. The facts alleged in both complaints, so far as the right of the plaintiff to have his title registered, are identical. The original complaint does not allege the statute under which the action is brought except as it refers to the “ Land Title Registration Law.” This is a term which may be stricken out as surplusage or regarded as having been used in characterization of tire existing law regulating that subject. The demurrer cannot be sustained on this ground.

The next contention, that the constitutionality of a law may be raised by demurrer, is beyond question the law of this State. It is argued that article 12 of the Real Property Law is violative of the provisions of the- Federal and State Constitutions. The appellant has no interest in the subject-matter of this action, and for that reason he cannot' litigate the constitutionality of this article of the Real Property Law. A statute is- assumed to be valid until some one whose rights it invades complains. (People v. Brooklyn, F. & C. I. R. Co., 89 N. Y. 75, 93; People v. Lowe, 117 id. 175, 192; Tyler v. Judges of Court of Registration, 179 U. S. 405 ; Clark v. Kansas City, 176 id. 114, 118 ; Turpin v. Lemon, 187 id. 51, 60 ; Lampasas v. Bell, 180 id. 276, 283; Hooker v. Burr, 194 id. 415, 419.)

It is next contended that if the action is held to be properly pending, and the statute under the provisions of which it is brought is held to be constitutional, the amended complaint fails to state facts sufficient to constitute a cause of action, and thirty-eight specific grounds are stated under this point. . Without specific, consideration of these objections, it is sufficient to say: First, that a cause of action under the statute is sufficiently alleged; second, these objections were before us on an appeal in the same action (See Duffy v. Shirden, 136 App. Div. 894) taken by the defendant Packard from an order denying her motion to vacate and set aside the summons,'notice of object of action and their service upon the defendants, for the reason that they failed to state facts sufficient to constitute a cause of action; third, the appellant, having no interest in the subject-matter, cannot litigate these questions. He has no interest in them, and their existence or non-existence in no manner affects him or his property.

The appellant next contends that causes of action are improperly united. This contention is based, upon the claim that the complaint ■ unites a cause.of action to register title with causes of action to register an alleged easement, on each side of plaintiff’s property, consisting of a right to maintain a party wall on a portion of such adjoining property. The complaint demands no such relief. The easements are properly alleged as showing the interest of the adjoining owners who have a similar easement.in plaintiff’s premises.

It is also urged that .there is a defect of parties defendant. In order to sustain a demurrer for a defect of parties, it must appear that the party demurring has an interest, in having the parties joined, or that he is prejudiced by their non-joinder. (Thompson v. Richardson, Nos. 1 & 2, 74 App. Div. 62; Anderton v. Wolf 41 Hun, 571, and cited cases.) The demurrant having no interest of that character, and none in the subject-matter of the action, cannot be heard upon this subject.

The serious question presented by the demurrer is whether it should be sustained as' to Rodriguez upon the ground that as to him it does not state facts sufficient to constitute a cause of action because of its failure to allege any facts showing that he has any interest in the subject-matter or is a necessary party. The statute (§ 379) requires that “all persons having or claiming any right or interest in or lien upon the property, or any part thereof, as shown by the examiner’s certificate of title * * * and such additional parties as may be .designated by the court in its order directing-the issuance and service of the summons ” shall be made parties.. There is no statutory requirement that adjoining owners not shown by the examiner’s certificate of title to have or claim any interest in or lien upon the property shall be made a party defendant. The notice of pendency of action is not indexed against abutting owners, (§ 382). In the case at bar the examiner’s certificate states- the names of the persons claiming interests or rights in the property, and Rodriguez is not named as such a person. The certificate as a wdiole shows that the appellant owns adjoining property which for a distance of six inches abuts on the rear of plaintiff’s property, but does not show that he has or claims any. interest in or lien upon said property. The order of the court for the issuance and service of the summons does not designate Rodriguez as a party to be served. It seems to follow that the appellant, as an abutting owner merely, is not a necessary party to the action. Section 389 of the statute provides for the protection of the rights of abutting owners not necessary party defendants under the provisions of section 379 by giving to any person interested in the property, or whose interests may be affected by the judgment, the right, although not specifically named as a defendant, to enter an appearance and answer the complaint, oppose the registration of plaintiff’s property or set up a cross demand to have the title registered in his own behalf, and section 383 provides for the filing of a “ caution ” entitling the person filing it to written notice of any application for registration. The only allegation in the complaint referring to the appellant is that he is an abutting owner. Under such conditions, if a property owner in an action of this character makes a person having no interest in the subject-matter and not a necessary party under the statutory requirements a party defendant, he does so at his peril, and if his complaint alleges no facts constituting a cause of action against such party, it is as to him demurrable, if a demurrer is authorized or can be made available, which is the last quwre. Section 385'should not be so construed as to deprive a party, even though improperly joined in the action, of the right to demur.

The interlocutory judgment must, therefore, be reversed, with costs, and the demurrer sustained, with leave to the plaintiff to amend on payment of thirty dollars costs within twenty days.

Jenks, Burr, Thomas and Caer, JVL, concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with leave to the plaintiff to amend on payment of thirty dollars costs within twenty days.  