
    Charles H. Vietor et al., Plaintiffs, v. Eli Goodman et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1899.)
    Judgment creditors’ action — Parties defendant, necessary to a complete determination.
    Where, after judgment creditors have brought an action to set aside transfers made by one defendant, their judgment debtor, to another, the transferror dies and appoints his transferee his administratrix, she should be made a party defendant in her representative
    
      capacity, as her presence in that capacity is necessary to a complete determination of the controversy, within the meaning of section 4o2 of the Code of Civil Procedure.
    Motion for substitution of parties defendant.
    A. Blumenstiel, for motion.
    A. W. Evarts, opposed.
   Gildersleeve, J.

The action is brought to set aside certain transfers made by Eli Goodman to the other defendants, Since the commencement of the action Eli Goodman died, and the defendant Sophia Goodman was appointed administratrix of the property of said Eli Goodman. This motion is for an order substituting said Sophia Goodman, as administratrix as aforesaid, in the place of said Eli Goodman, deceased, as a defendant in the action. All the parties to the action consent to such substitution, except said Sophia Goodman. The objection is based on the ground that section 757 of the Code does not authorize this substitution, as that section applies only to cases where there is only one plaintiff or one defendant, as the case may be. This application, however, is not made under section 757 of the Code, which merely specifies a certain case where a substitution is obligatory. There are other cases where such substitution may be ordered, not specified in that section. This action is a creditor’s action, and Eli Goodman was the judgment debtor. He died while the action was pending, and the action cannot legally proceed to judgment without bringing in this personal representative as a party. See First Nat. Bank v. Shuler, 153 N. Y. 163. The fact that Sophia Goodman is a party defendant in her individual character does not obviate this necessity. She has a separate individual interest in the litigation, which was instituted to avoid transfers made to her by the debtor, and she was a co-defendant "with him in this action during his lifetime. See First Nat. Bank v. Shuler, supra, p. 170. Section 452 of the Code provides that where a complete determination of the controversy cannot be had without the presence of other parties the0 court must direct them to be brought in. The motion must be granted, with $10 costs to plaintiffs to abide event.

Motion granted, with $10 costs to plaintiffs to abide event.  