
    SUPREME COURT.
    Philip S. Crooke, exec’r, agt. John O’Higgins and another.
    All persons who have joined in a contract, should be made party defendants in an action on the contract. The non-joinder can be taken advantage of by answer, where it does not appear on the face of the complaint.
    In an action, however, for the foreclosure of a mortgage, where the mortgagor had previously entered into a written agreement with a person to convey the premises, held, that, although such person was a proper party, the omission to make him a party would not prevent the rendition of a valid judgment.
    
      New-York Special Term,
    
    
      April, 1857.
    P. S. Crooke, in person, plaintiff.
    
    Larocque & Barlow, for defendants.
    
   Clerke, Justice.

In an action on a contract, all persons who have joined in it should be made party defendants; and the non-joinder can be taken advantage of when the defect does not appear on the face of the complaint, by answer, as it formerly could have been by plea in abatement. But, in an action for the foreclosure of a mortgage, although many besides the mortgagor or his co-contractors, whether principal or sureties, are necessary parties: yet I do not agree with the defendant’s counsel, that no valid judgment can be rendered in this kind of action without making a person a defendant, with whom the mortgagor has entered into a written contract to convey the premises. But, although not indispensable, I think it is proper; and, as it is possible some embarrassment may happen to the defendant Shaw, if Gori should not be joined with him ; and, as the Code gives the court great latitude in this respect, I will direct that the latter be made a defendant before a final determination of the case.

Order accordingly—costs to abide event.  