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 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, or is temporarily absent therefrom, 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.

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.

a. Guardian.-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 (ante, p. 88). The reason of his appointment is that there may be a person before the court accountable for the costs (The People v. New York 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 (id.) A person cannot be appointed guardian ad litem against his consent (id.) The guardian should be a responsible person (Cook v. Rawdon, 6 How. 233; Robertson v. Robertson, 3 Paige, 387),

and one likely to protect the rights of the infant (Grant v. Van Schoonhover, 9 Paige, 255; 1 Barb. Ch. Pr. 85).

a. A motion to appoint guardian for an infant defendant may be made at any time before a motion is made for that purpose by the plaintiff in the action (Mc Connell v. Adams, 1 Code Rep. N. S. 114; and see E. B. v. E. C. B. 8 Abb. 44; 28 Barb. 299).

b. Order.—A copy of the order appointing guardian for infant defendant should be served with the answer. The regularity of an order appointing a guardian or of its service cannot be questioned after judgment has been entered, nor collaterally (Rogers v. McLean, 31 How. 279; Barnard v. Heydrick, 2 Abb. N. S. 48; 32 How. 97; Graham v. Pinckney, 7 Rob. 147).

c. Partition—guardian for an infant plaintiff in action for partition, see section 448, post.

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

8 117. 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.

d. This section furnishes the rule as to the parties plaintiff in all cases (Loomis v. Brown, 18 N. Y. 76); except actions for partition of real estate (see note to § 448, post).

e. Partners.-A dormant partner is a necessary party plaintiff in an action for the recovery of a partnership debt (Secor v. Keller, 4 Duer, 416). Suits in relation to the business of a limited copartnership, 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, and Laws 1864 ch. 43).

f. Distinct claims.--Persons having distinct claims against another can not 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 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). But several 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); and several 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); and where a person stakes upon an illegal wager money belonging to himself, and others, in an action against the stakeholder to recover the money deposited, he can only recover the amount deposited by himself (Ruckman v. Pitcher, 13 Barb. 556). An action for a libel on members of a hose company-neither being partners nor persons having a community of pecuniary interest-cannot be sustained by them jointly (Giraud v. Beach, 3 E. D. Smith, 337).

g. 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).

h. Bonds.—Action on injunction bond all the obligees may join (Loomis v. Brown, 18 N. Y. 76). In action on bond to discharge attachment under 2 R. S. 12 s. 57, the creditors may sue jointly or severally (Pearce v. Hitchcock, 2 N. Y. 388).

i. Tenants in common of real property must unite in an action for

trespass thereon (Depuy v. Strong, 37 N. Y. 372; 4 Abb. N. S. 340), but for use and occupation thereof they may sue jointly or separately (Porter v. Bleiler, 17 Barb. 149; Jones v. Felch, 3 Bosw. 63). Tenants in common of a chattel must join in an action for its conversion (Rice v. Hollenback, 19 Barb. 664), and one of several plaintiffs in such an action can not settle so as to impair the rights of his coplaintiffs (Gock v. Keneda, 29 Barb. 120). Where a vessel has several owners, they should all join in an action for freight (Merritt v. Walsh, 32 N. Y. 685; Donnell v. Walsh, 33 N. Y. 43); or for the hire of the vessel (Coster v. N. Y. Erie R. R. 3 Abb. 332). To recover the proceeds of a sale of real estate of tenants in common, each tenant may maintain a separate action for his share (Van Wart v. Price, 14 Abb. 4 note; see Gen. Mut. Ins. Co. v. Benson, 5 Duer, 168).

§ 118. (Am'd 1867.) Who to be defendant.

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; and in an action to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants; and any person claiming title or a right of possession to real estate may be made parties plaintiff or defendant, as the case may require, to any such action.

a. Assignor and assignee.-When an action is brought by the assignee of a demand it is not, in ordinary cases, necessary to make the assignor a party defendant (Allen v. Smith, 16 N. Y. 415). But the court may order an alleged assignor of a claim in suit to be brought in as a party (Freeman v. Newton, 3 E. D. Smith, 246.

b. To cancel fraudulent 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. Mickels, 29 Barb. 470).

d. Fraudulent deeds.-In an action by judgment creditors, or a receiver, to set aside 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. Striker, 12 Abb. 47; Vanderpool v. Van Valkenburgh, 6 N. Y. 190; Lawrence v. B'k of the Republic, 35 N. Y. 320; Monroe v. Galveston R. R. Co. 19 Abb. 90), and an incumbrance should be made a party, although resident out of the State (Gray v. Schenck, 4 N. Y. 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 for the benefit of creditors, it is not necessary to make all the creditors parties defendant (B'k of N. America v. Suydam, 6 How. 379).

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

f. Heirs. 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).

a. Next of kin, as used in the statute authorizing actions 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).

b. 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).

c. In an action against stockholders of a corporation to recover illegal dividends received by them, creditors of the corporation may be joined as defendants (Osgood v. Laytin, 3 Keyes, 521).

Ejectment-Ejectment for dower.-See post, § 455.

d. Executors.-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 (Serantom v. Farmers' Bank of Rochester, 33 Barb. 531; Moore v. Willett, 2 Hilton, 522). 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, 6 N. Y. 168).

e. One of two executors may maintain an action to call his co-executor to an account. The creditors, legatees and next of kin are not necessary parties, except in case of final accounting (Wood v. Brown, 34 N. Y. 337). In an action against an executor for the recovery of a legacy which the executor alleges has been paid by him to a stranger, for the benefit of the legatee, the stranger need not be joined as a defendant (Gleason v. Thayer, 24 Barb. 82). In an action by a residuary legatee for his share of the residue, all persons interested in the residue must be made defendants (Tonnelle v. Hall, 3 Abb. 205; and see Towner v. Tooley, 38 Barb. 598).

f. The executor of D. H. died, leaving funds for his testator mingled with his own, and they passed so mingled into the hands of his executor, the defendant-held that in an action by a legatee named in the will of D H. the residuary legatees named in said will should be parties (Theological Sem. of Auburn v. Kellogg, 16 N. Y. 84).

g. Foreclosure.-The owner of the equity of redemption is a necessary party to a suit for the foreclosure of a mortgage. And the objection that he is not made a party may be made by the mortgagor. The fact that the deed from the mortgagor to the present owner of the equity of redemption was not recorded at the time of the commencement of the suit, and of the filing the notice of lis pendens, does not excuse the omission of the owner of the equity of redemption as a party (Hall v. Nelson, 23 Barb. 88; 14 How. 32; and see Griswold v. Fowler, 6 Abb. 113). Where the mortgagor has parted with all his interest in the premises, and the owner of the equity of redemption is personally liable for any deficiency, it is not necessary to make the mortgagor a party defendant (Drury v. Clark, 16 How. 424; see Crooke v. O'Higgins, 14 How. 154). Every party interested in the division of the proceeds of the estate should be made a party defendant (Denton v. Nanny, 8 Barb. 618). The wife or widow of the mortgagor must be made a party to bar her dower (Mill V. Van Voorhies, 23 Barb. 125; 10 Abb. 152).

h. In a suit to foreclose a mortgage, one who claims adversely to the mortgagor, and prior to the mortgage, cannot properly be made a party defendant for the purpose of trying the validity of such adverse claim (Corning v. Smith, 12 N. Y. 82). But prior incumbrancers may be made parties to have

the amount due them liquidated (lcomb v. Holcomb, 2 Barb. 20; and see Chapman v. Draper, 10 How. 367).

a. Infant.-Where an infant is a party to a contract, in an action on such contract it is necessary to make the infant a party (Slocum v. Hooker, 13 Barb. 536; Butler v. Morris, 1 Bosw. 333).

b. Landlord and tenant.-Lessees and underlessees may be joined as defendants in an action for violating the covenants in a lease as to user of demised premises (Gillilan v. Norton, 6 Rob, 546).

c. Negligence.-Where the plaintiff, while a passenger in the cars of the Harlem Railroad Company, was injured by the conjoint negligence of the servants of that company and the servants of the New Haven Railroad Company, plaintiff can join both companies as defendants (Colgrove v. N. Y. & Harlem R. R. Co. 20 N. Y. 492; but see 5 Rob. 548). Master and servant may be joined as defendants in a action to recover for the negligence of the servant (Montfort v. Hughes, 3 E. D. Smith, 591).

d. Partition.-See note to section 448, post.

e. Partners. In an action against partners all must be joined that the statute of limitations is a defense as to one partner is no excuse for omitting to make him a defendant (Hyde v. Van Valkenburgh, 1 Daly, 416; and see Briggs v. Vose, 15 N. Y. 471; Hurlbut v. Post, 1 Bosw. 28). But in an action on a contract made with the ostensible members of a firm, the defendants cannot avail themselves of the nonjoinder 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 Bishop v. Edmiston, 16 Abb. 466; Cookingham v. Lasher, 2 Keyes, 454); but secret partner may be joined as a defendant (Brown v. Birdsall, 29 Barb. 549). Where one of several partners makes a joint and several promissory note, and subscribes to it the name of his firm, he may be sued on such note alone without joining the other partners (Snow v. Howard, 35 Barb. 55).

f. Where a lease is made to two partners, and they afterwards dissolve the partnership, and agree to, and do, each occupy separately distinct portions of the demised premises, they do not thereby affect the lessor's right to maintain an action for the rent against such lessees jointly (Hurlbut v. Post, 1 Bosw. 28; see St. Paul's Church v. Ford, 34 Barb. 16).

g. As to the case of two firms having one common member, and one firm performing work for the other, how it must be sued for (Englis v. Furniss, 4 E. D. Smith, 587; Decker v. Furniss, 14 N. Y. 611; and see 18 N. Y. 76).

h. The personal representative of a deceased partner cannot be joined, as a party defendant, with the surviving partner, to an action for a partnership debt, unless it be shown on the face of the complaint that the plaintiff cannot procure satisfaction from the survivor (Voorhis v. Child's Ex'or, 17 N. Y. 354; Copcutt v. Merchant, 4 Bradf. Sur. Rep. 18; Higgins v. Freeman, 2 Duer, 650; Voorhies v. Baxter, 1 Abb. 45; 18 Barb. 592; Moorehouse v. Ballou, 16 Barb. 289; Tracy v. Suydam, 30 Barb 110; Dubois case, 3 Abb. 177; Mc Vean v. Scott, 46 Barb. 384). The objection is waived if not raised by demurrer Wright v. Storrs, 6 Bosw. 600).

i. In an action by partner against his copartner to dissolve the copartnership and to set aside a fraudulent sale of the partnership property, the vendee should be a party (Webb v. Helion, 3 Rob. 625).

j. Receiver. The receiver of a bank should not be joined as a party defendant in an action against the bank on a mere money demand (Arnold v. Suffolk B'k, 27 Barb. 424).

k. Relief.-Certain securities were deposited with A., as agent to negotiate loans on them. A., in violation of the trust, disposed of the securities to various parties; whereupon the owners brought suit against A., and all the transferees of the securities,-held that the transferees could not be joined as defendants (Lexington & Big Sandy R. R. Co. v. Goodman, 5 Abb. 493; 15 How. 85; 25 Barb. 469).

7. Sheriff and deputy.—A sheriff is liable as a trespasser for the acts