
    Frances L. Wallace and Talbot J. Taylor, as Committee of the Person and Property of Allen Wallace, an Incompetent Person, Appellants, v. Michel C. Bouvier and Robert C. Cornell, as Executors, etc., of John Wallace, Deceased, and Others, Respondents.
    First Department,
    December 30, 1910.
    Practice — defect of parties defendant—failure to take objection by demurrer or answer — waiver —judgment on pleadings.
    If it appear on the face of the complaint that there is a defect of parties defendant, the objection should be taken by demurrer. If the defect do not appear on the face of the complaint, objection must be taken by answer. Unless such objection be taken by demurrer or answer defendant is deemed to have waived it.
    Where, in an action brought under section 2653a of the Code of Civil Procedure, a defect of parties defendant appears on the face of the complaint, but no demurrer is made, and an objection is not taken by answer, it is waived, and a motion by defendants for judgment on the pleadings on the ground that the complaint does not state facts sufficient to constitute a cause of action because of a defect of parties defendant should be denied.
    Appeal by the plaintiffs, Frances L. Wallace and another, as committee, etc., 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 the 13th day of October, 1910, granting the defendants’ motion for judgment on the pleadings made pursuant to section 547 of the Code of Civil Procedure, and also from the judgment entered on the same day upon such order.
    
      Edward W. Hatch, for the appellants. .
    
      Dudley Davis, Pierpont Davis, John McL. Hash and George 8. Mitlendorf of counsel, for the respondents.
   Miller, J.:

The action is brought under section 2653a of the Code of Civil Procedure in behalf of Allen Wallace, an incompetent person, the sole heir at law and next of kin of the testator: It appears by the codicil which is annexed to the complaint that Annie Marie Wallace and the trustees of Union College are legatees. The respondents answered but did not allege that there was a defect of parties defendant.

Section 2653a provides : “All the devisees, legatees and heirs - of the testator and other interested persons, including the executor or administrator, must be parties to the action ; ” but it does not provide what the complaint must state as does section 1542 with respect to actions for partition. Section'499 of the Code of Civil Procedure provides: “ If such an objection \i. e., one of those specified in section 488] is not taken, either by - demurrer or answer, the defendant is deemed to have waived it; except the objection to the' jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action.”

Undoubtedly there was a defect of parties defendant ;but, as that fact appeared upon the face of the complaint, it should have been taken by demurrer. If the defect had hot appeared upon the face of the complaint the objection could have been taken by answer. But it is plain, if the section quoted is to havefany meaning at all, that the failure to take objection either by demurrer or answer waives it. It does not follow that the parties to the suit will be permitted to proceed therein to final judgment without the presence of all interested persons. They can be brought in upon the motion of any party and, upon the defect appearing, the court of its own motion will order them brought in. But a defect, of parties is very different from the failure-of the complaint to state facts sufficient to constitute, a cause of action, as all the Code sections relative to pleading plainly recognize.

The stated ground of the motion was that the complaint does not state facts sufficient to constitute a cause of action, but it was in fact granted because there was a defect of parties defendant. Two decisions of this court in the Second and Third Departments, respectively, are cited in support of the proposition that a defect of parties defendant in such an action as this rendei’s the complaint demurrable for insufficiency. (Wood v. Fagan, 126 App. Div. 581; Early v. Nash, 139 id. 736.) The latter case was decided upon the ground of a defect of parties defendant and what was said with respect to the failure of the complaint to state a cause of action was. unnecessary to the decision. In the former case it was decided that a complaint in such an action as this, which-contained no'aliegation that the plaintiffs and defendants were the only next of kin and heirs at law of the testatrix did not state a cause of action. However, the point seems to have been taken for granted, as the opinion of the court dealt entirely with other questions, and apparently section 499 of the Code of Civil Procedure was not called to the attention of the court or considered. It seems to us that there is no answer to the proposition that the defendants having failed to take the point as provided by section 499 of the Code, cannot now ask that the complaint be dismissed.

The judgment and order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Judgment and order reversed, with ten dollars costs and disbursements, and motion denied, with ten. dollars costs.  