Ebbets v. Martine ( 1879 )

Barnard, P. J.:

After a decree in- foreclosure, and after a sale thereunder, the property being of little or no value, it was discovered that, by a mistake in the search, a person liable to pay the mortgage debt had been left out as defendant. The plaintiff applied, at Special Term, upon notice to all the parties who had appeared in the action, for leave to file a supplemental complaint. At the time of this application, Theodore Martine, one of the defendants in the action, had died. He had not appeared in the action. No notice was given to his executor. The order for leave to file the supplemental complaint was granted, and a supplemental summons and complaint was directed to bring them in. A supplemental summons and complaint was directed to issue to the executors of the deceased, Theodore Martine. These executors, after they were served with the summons, and after they had appeared generally in the supplemental action, made a -motion to vacate the order directing a supplemental summons to issue to bring them in, on the ground that they had no notice of the application. This motion was denied, and the executors of Theodore Martine appealed. It was not the practice of the Court of Chancery to require notice to be given of an application for leave to file a supplemental bill. (Eager v. Price, 2 Paige, 335 ; Lawrence v. Bolton, 3 id., 295.). Such notice does not seem to be required by the Code in cases where a defendant is brought in, not upon his own application. Section 453 of the Code of Civil Procedure provides, that when the court directs a new defendant thus to be brought in “ a supplemental summons ” must be issued to him. He is made a defendant, and an opportunity must be given- him to answer. The new defendant, or any party, may demur if so advised or answer. (Fleischman v. Bennett [unreported ; decided last term of this court].) Notice is held not to be necessary under the Code. (2 Wait’s Practice, 470 ; Fisk v. Albany and Susquehanna R. R. Co., 8 Abbott [N. S.], 310.) Such orders are granted by the court whenever it is decided upon the trial that it is necessary to bring in another party than those to the record, to have a complete determination of the issues presented. In such cases there is no notice given of the application for the order to the defendants to be brought in. They have the same rights as other defendants after they are brought in.

The order must be affirmed, with costs.

Dykman, J., concurred.; Pratt, J., not sitting.

Order affirmed, with costs and disbursements-.