
    Isaac J. Maccabe, App’lt, v. Stephen W. Jones, as Ex’r, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 19, 1888.)
    
    1. Judgments—When void—Duty op court.
    No judgment of the court should be allowed to stand which is entered without having the proper parties before it. If it is void it should be declared so, and not remain upon the record to occasion mischief.
    3. Same—Action on contract—Parties.
    In an action on contract, after the court had found that the title to the contract, if any existed, was not in the plaintiff, that only one party to the contract was before the court, Held, that no valid judgment could be rendered affecting the merits of the controversy.
    Appeal from judgment entered against the plaintiff upon trial at special term.
    
      Noah Davis, for app’lt; Abram Kling, for resp’t.
   Van Brunt, P. J.

This action was commenced against one Wallace, a lunatic, and his committee, to compel a specific performance of a contract relating to real estate.

The contract was made in August, 1883, by Wallace, before he became a lunatic, with one James Panin.

In February, 1884, before the contract was completed, Wallace was adjudged a lunatic, and in July, 1884, Panin ■died. His brother was appointed his administrator, and as such administrator attempted to assign this contract to the plaintiff, who brought this action.

The answer denied the authority of the plaintiff to maintain the action, and also alleged an abandonment of the contract by Panin.

Upon the trial the learned court found that the plaintiff acquired no title to the contract in question by the assignment to him thereof by Panin’s administrator, but that upon Panin’s death, the said contract vested in the heirs-at-law of said Panin.

The court thereupon, found that the contract had been abandoned by Panin, and that it was void.

No complaint seems to be made upon this appeal with the finding that the plaintiff had no title to the contract in question, but it is urged that after the court had found that the title to the contract, if any existed, was not in the plaint-that as only one party to the contract was before the court, no valid judgment could be rendered affecting the merits of the controversy.

In this position, we think the appellant is correct. - There were no parties before the court to be affected by such a judgment. The owners of the contract were not parties to the action by the express adjudication, and when this fact appeared, the court should have refrained from making any adjudication upon the merits. Such judgment was merely obtained ex parte and could have had no effect upon the real parties in interest.

It may be said that then it can do no harm, but no judgment of the court should be allowed to stand which is entered without having the proper parties before it. If it is void, it should be declared so, and not remain upon the record to occasion mischief perhaps in a manner least expected.

The judgment should be modified by striking therefrom, all adjudication upon the merits, so that it will be simply a dismissal of the complaint with the costs and allowance therein mentioned, and as modified, affirmed, without costs of this appeal.

Brady and Daniels, JJ., concur.  