1. When the infant is plaintiff, upon the application of the infant; if he be of the age of fourteen years; or if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides.

2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this State; if he has none, then to the infant himself if over fourteen years of age, and within the State; or if under that age, and within the State, to the person with whom such infant resides.

And in case an infant defendant, having an interest in the event of the action, shall reside in any State, with which there shall not be a regular communication by mail, on such fact satisfactorily appearing to the court, the court may appoint a guardian ad litem, for such absent infant party, for the purpose of protecting the right of such infant in said action, and on such guardian ad litem, process, pleadings and notices in the action may be served, in the like manner as upon a party residing in this State.

And in actions for the partition of real property, or for the foreclosure of a mortgage or other instrument, when an infant defendant resides out of this State, the plaintiff may apply to the court in which the action is pending, at any special term thereof, and will be entitled to an order designating some suitable person to be the guardian for the infant defendant for the purposes of the action, unless the infant defendant, or some one in his behalf, within a number of days after the service of a copy of the order, which number of days shall be in the said order specified, shall procure to be appointed a guardian for the said infant; and the court shall give special directions in the order for the manner of the service thereof, which may be upon the infant himself, or by service upon any relation or

person with whom the infant resides, and either by mail or personally upon the person so served.

a. Where an infant is plaintiff, he must have a guardian appointed before the action is commenced (Hill v. Thatcher, 2 Code Rep. 3; 3 How. 407); and if an action on behalf of an infant be commenced by a next friend instead of a guardian, it is irregular (Hoftailing v. Teal, 11 How. 188). Where the infant is a married woman suing as a co-plaintiff jointly with her husband, no guardian for her seems necessary (Cook v. Rawdon, 6 How. 233; 1 Code Rep. N. S. 382). The guardian should be a responsible person, competent to answer for the costs (Id.) A responsible person is one worth at least $250 above all debts (Robertson v. Robertson, 3 Paige, 387).

b. It seems that there is no authority for the appointment of a guardian for an infant for the purpose of a submission of a controversy without action (Fisher v. Stilson, 9 Abb. 33).

c. Where an infant defendant is a married woman, it is customary to appoint her husband her guardian, unless he has an interest adverse to her, if he be competent in other respects (1 Barb. Ch. Pr. 85).

d. It seems that that part of Rule 60 of the supreme court which requires the guardian ad litem to be the general guardian, or an attorney, &c., or other officer of the court, does not apply to a guardian for the plaintiff (Cook v. Rawdon, supra.)

e. In McConnell v. Adams (1 Code Rep. N. S. 114), the defendant was an infant, over the age of 14. The summons was served in December, and no guardian having been applied for by the plaintiff, a guardian was appointed on the petition of the defendant on the 25th of February. On motion to dismiss the complaint, it was insisted that the defendant could not regularly petition for the appointment of a guardian after twenty days from the service of the summons; but held that the appointment was properly made, that section 116 was intended for the protection of the infant, to secure him the opportunity of having a guardian of his own selection by giving him twenty days after the service of the summons in which no other person could apply. After that time the plaintiff or any relative or friend of the infant, might make the application; but the infant was still at liberty to apply himself, until forestalled by such application. See E. B. v. E. C. B. (8 Abb. 44; 28 Barb. 299).

f. In the appointment of a guardian ad litem for an infant defendant, the person should be selected who will be most likely to protect the rights of the infant. And where his father or other natural guardian is complainant, the next nearest relative is entitled to be heard on the selection of a guardian. To authorize the appointment of such a guardian it should be distinctly shown either that the infant has been personally served with process or proceeded against as an absentee (Grant v. Van Schoonhoven, 9 Paige, 255).

g. The motion for the appointment of a guardian may be made at chambers (5 Abb. 53). The appointment of a guardian for a plaintiff should be alleged in the complaint; see in note to section 142 post, and where the infant is defendant a copy of the order appointing a guardian for him should be served with the answer (2 Saund. 117, g. n. 1).

h. A guardian ad litem is a species of attorney whose duty it is to prosecute for the infant's rights, and to bring those rights directly under the notice of the court (Knickerbocker v. De Freest, 2 Paige, 304). He can do nothing to the injury of the infant, and cannot compromise or settle his suit (Miles v. Kaigler, 10 Yerg. [Tenn.] R. 10), and a payment to him is not satisfaction unless ratified by the infant at majority (Allen v. Rountree, 1 Speers [S. C.] R. 80; Edsall v. Vandemark, 39 Barb. 589). He is not a party to the suit, and his duty ends with the final judgment therein (Brown v. Hull, 16 T. R. 673; Jarvis v. Boyd, 5 Porter [Ala.] R. 388; Darrin v. Hatfield, Court of Appeals, December, 1852, Selden's Notes; Sinclair v. Sinclair, 1 New Pr. Cas. 179; Millinck v. Collier, 14 Jurist, 621). The reason of his appointment is that there may be a responsible person before the court, accountable for the costs (The People v. N. Y. Com. Pleas

11 Wend. 166). Being liable for costs (Leopold v. Meyer, 10 Abb. 41; 2 Hilton, 580; Code §§ 316, 115), he is not compelled to incur any liability other than for the costs of the adverse party, and for these he has a remedy over against the estate of the infant. He is entitled to have any expenses necessarily incurred by him in the action, reimbursed out of the proceeds recovered in such action; but his application for such reimbursement must be made before the fund has been parted with by the attorney to the plaintiff, and therefore where a recovery was had and the money had been paid over by the plaintiff's attorney to the infant plaintiff without notice of any claim of the guardian, held that the attorney was not liable to reimburse the guardian expenses incurred by him. (Id.) A person cannot be appointed guardian ad litem against his consent. (Id.)

a. The appointment of a guardian to prosecute or defend for an infant in an action for partition of lands, is regulated by the revised statutes, and not by the code. See section 448, post.

See Supreme Court Rules, 60 et seq.; and see § 420.

§ 117. [97] Who to be joined as plaintiffs.

All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title.

b. This section now furnishes the rule as to the parties plaintiff in all cases, whether such as were formerly subjects of suits in equity, or of actions at law (Loomis v. Brown, 16 Barb. 331; 18 N. Y. 76); except actions for partition of real estate (See note to § 448, post).

c. In an action on an injunction bond, the subject of the action being the damages sustained by the plaintiffs in consequence of an injunction, all the obligees may join as plaintiffs, notwithstanding the claim of one of them is different in its character and amount from that of the others. (Id.)

d. Different creditors of a corporation having a common interest in the relief sought, may unite in the same complaint (Conro v. Port Henry Iron Co., 12 Barb. 28; and see Dix v. Briggs, 9 Paige, 595).

e. Different persons owning separate tenements affected by a nuisance, may join in a suit to restrain by injunction the continuance of the nuisance (Peck v. Elder, 3 Sand. 126; Brady v. Weeks, 3 Abb. 157; contra, Hudson v. Madison, 35 Eng. Ch. R. 352).

f. Where a person stakes upon an illegal wager money belonging to himself, and others, in an action against the stake-holder to recover the money deposited, he can only recover the amount deposited by himself (Ruckman v. Pitcher, 13 Barb. 556).

g. An action for a libel on members of a company or association, a hose company in the city of New York-neither being partners nor persons having a community of pecuniary interest wherein they could sustain damage, cannot be sustained by them jointly (Giraud v. Beach, 3 E. D. Smith, 337).

h. Section 111 is imperative, and is subject to no exceptions other than those stated in section 113. Hence, a dormant partner is a necessary party plaintiff in an action for the recovery of a partnership debt founded on a partnership contract, whether the relief sought be legal or equitable (Secor v. Keller, 4 Duer, 416). But in an action on a contract made with the ostensible members of a firm, the defendants cannot avail themselves of the non-joinder of a secret partner, unless the plaintiff knew of such secret partner (N. Y. Dry Dock Co. v. Treadwell, 19 Wend. 525; cited Van Valen v. Russell, 13 Barb. 592; and see Hurlbut v. Post, 1 Bosw. 28; Brown v. Birdsall, 29 Barb. 549; Bishop v. Edmiston, 16 Abb. 466). Suits in relation to the business of a limited co-partnership, may be brought and conducted by and against the general partners in the same manner as if there were no special partner (1 R. S. 766, § 14; see Schulten v. Lord, 4 E. D. Smith, 206).

4. Persons having distinct claims against another cannot unite to enforce such claims in one action (Wood v. Perry, 1 Barb. 114; and see Mead v. Mali, 15 How. 347). The commissioners of highways of two towns cannot unite as plaintiffs in an action to recover a penalty for an encroachment upon a highway running on the line between such towns (Bradley v. Blair, 17 Barb. 480).

b. As a general rule when a fund is in the hands of a trustee, which he is bound to distribute to different persons in unequal proportion, all who are interested in the distribution are necessary parties to an action against the trustee. But when the sum that each is to receive has been ascertained by a proceeding binding on the trustee, each of the persons entitled to participate in such distribution may maintain a separate action for his proportionate share thus ascertained (Gen. Mut. Ins. Co. v. Benson, 5 Duer, 168).

c. Owners of real property as tenants in common may sue jointly or separately for use and occupation (Porter v. Bleiler, 17 Barb. 149; Jones v. Felch, 3 Bosw. 63). It was held in an action on a bond given for the benefit of several creditors to discharge an attachment under 2 R. S. 12, § 57, may be sued either in the name of a single creditor or of all the creditors (Pearce v. Hitchcock, 2 Coms. 388).

d. In an action for the hire of a vessel owned by several persons_jointly, all the joint owners must join as plaintiffs (Coster v. N. Y. & Erie R. R., 3 Abb. 332). Where one had received a sum of money, the proceeds of real estate belonging to tenants in common, it was held that each tenant_might maintain a separate action for his proportion of such proceeds (Van Wart v. Price, 14 Abb. 4, note).

e. Tenants in common of a chattel must join in an action for its conversion. If they do not, and the defendant does not object by answer or demurrer, he cannot at the trial defeat a recovery. The damages will be apportioned, and the plaintiff may recover for his interest; and when afterwards the other tenant sues to recover for his interest, the defendant cannot raise the objection of the non-joinder of his co-tenant (1 Chit. Pl. 66; 7 T. R. 279; 5 Hill, 59, note; Rice v. Hollenback, 19 Barb. 664). When tenants in common of a chattel have united in an action for its conversion, one of them cannot release or settle the action so as to defeat the rights of the other to proceed and recover his portion of the damages (Gock v. Keneda, 29 Barb. 120). How the action may be proceeded with after a settlement by or death of one of several plaintiffs, see note to 121, post.

f. In actions brought by or against executors, it is not necessary to join those as parties to whom letters testamentary have not been issued, and who have not qualified (Laws 1838, p. 103); but all the executors to whom letters have been issued, and who have qualified should join (Scrantom v. Farmers' Bank of Rochester, 33 Barb. 531; Moore v. Willett, 2 Hilton, 522).

g. On a promissory note given to an executor or administrator on account of the decedent's estate, he may sue either individually or in his representative capacity (Bright v. Currie, 5 Sand. 433; Merritt v. Seaman, 2 Selden, 168).

Who to be defendant.

§ 118. [98.] (Am'd 1849.) Any person may be made a defendant, who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.

h. Account. In an action by one of eleven harbor-masters of the port of New York against another of them, for an account of fees received by him on account of the whole eleven, held that all the harbor-masters should be parties (Dean v. Chamberlin, 6 Duer, 691).

a. Assignor and assignee.-The master of a vessel having an unsettled account with her owner, for his wages and for his receipts from the earnings of the vessel and disbursements on her account, assigned his claim to a third person. The assignee sued, and it appeared on the trial that there was a balance due from the defendant; held that the defendant could not require the master to be made a party to the action for the purpose of enforcing an accounting (Allen v. Smith, 16 N. Y. 415). Where an action is brought by the assignee of a demand it is not, in ordinary cases, necessary to make the plaintiff's assignor a party defendant (Freeman v. Newton, 3 E. D. Smith, 246). But in some cases the court may order an alleged assignor of a claim in suit to be brought in as a party to protect the defendant against another action in the name of such assignor, in which the execution of any assignment might be denied by the latter. (Id.)

b. To cancel fraudulent certificates. Where spurious certificates of stock in a railway corporation, issued by the officer having apparent authority to do so, and undistinguishable on their face from the genuine certificates, are in the hands of various holders; the corporation may sue all such holders in one action for the cancelling of such certificates (N. Y. & N. Haven R. R. Comp. v. Schuyler, 17 N. Y. 592; and see 38 Barb. 537; 1 Abb. 417).

c. Award.-In an action to set aside an award of arbitrators, the arbitrators need not be made defendants (Knowlton v. Mickles, 29 Barb. 470).

d. Fraudulent deeds.-In an action by judgment creditors, or a receiver, to set aside alleged incumbrances on or conveyances of the judgment debtor's estate, for fraud, and to have the estate applied to satisfy plaintiff's judgments, the judgment debtor, and all the incumbrances or grantees of the estate, should be united as defendants (Morton v. Weil, 33 Barb. 30; 11 Abb. 421; and see Wallace v. Eaton, 5 How. 99; Jacot v. Boyle, 18 How. 106; Sage v. Mosher, 28 Barb. 287; Shaver v. Brainard, 29 Barb. 25; Cox v. Platt, 32 Barb. 126; Reed v. Stryker, 12 Abb. 47; reversing 6 Abb. 109; Vanderpool v. Van Valkenburgh, 2 Selden, 190), and an incumbrancer should be made a party although a resident out of the State (Gray v. Schenck, 4 Coms. 460). But one who innocently accepted a deed of the property for the benefit of the alleged fraudulent grantee and who has conveyed in accordance with the trust, is not a proper party (Spicer v. Hunter, 14 Abb. 4). Where the complaint against the original debtors and their assignees, seeks to set aside an assignment made for the benefit of creditors, it is not necessary to make all the creditors parties defendThe assignees in such case represent all the creditors interested in the trust. It would be otherwise if the action were to establish and carry out the assignment, or for portions of the trust fund (Bank of British North America v. Suydam, 6 How. 379).

ant.

e. In an action by creditors against an assignee for the benefit of creditors for an account and to have the assignment to the defendant reformed, held that the assignors and the persons to be affected by the alteration of the assignment were necessary parties defendant (Garner v. Wright 24 How. 144).

f. Heirs and Next of Kin.-An action against heirs to recover a debt of their ancestor must be against the heirs jointly and not separately (Laws 1837, p. 537, § 73,) but this does not make them joint debtors (Kellogg v. Olmstead, 6 How. 487).

g. The term "next of kin" as used in the statute authorizing actions to be brought against the next of kin of any deceased person to recover the value of any assets paid to them by an executor or administrator, means those to whom, under the statute of distributions, the personal estate of the deceased would pass, and includes the widow of the deceased, but not the husband of such widow (Merchants' Ins. Co. v. Hinman, 34 Barb. 410).

h. Stockholders.-In an action to charge stockholders personally with debts of their corporation, judgment creditors of the corporation are not proper parties defendant without showing why they were not made parties plaintiff (Young v. N. Y. and Liverpool Steamship Co., 10 Abb. 229). In such an action, the corporation is not necessarily a party defendant (Perkins v. Church, 31 Barb. 84).