Rhodes v. Dymock

Decided February 4, 1871

The Superior Court of New York City · decided 1871-02-04

In the case of a'nonjoinder of defendants, and appearing on the face of the complaint, a demurrer is the proper remedy. If the defect does not thus appear, the defendant may set it up in the answer, but if no objections are taken by demurrer or answer, they shall be • deemed as waived (Code, §§ 144, 141,148). Objections to parties must be taken in this way, and cannot be made for the first time at the trial of the action. When a complete determination of the controversy cannot be had without the presence of other parties (additional to those of the record), the court must cause them to be brought in {Code, § 122). Such action of the court may be invoked by motion of any party, or may proceed by the direction of the court as of its own motion, based upon the facts and circumstances appearing in the case, but in such case the court should not nonsuit or dismiss the complaint because of this defect that thus appears for the first time, and which was not theretofore noticed or objected to by any party. The court should make such an order in the premises as will preserve the rights and equities of all parties interested in the subject matter of the action, whether of the record or otherwise, and ample time given to all parties to prepare for and meet the changed order or issue in the case. The rulings on section 122, of Code, appearing in the case of Sheldon 0. Wood, 2 Bosw. 267, and 24 N. T. 607, cited and approved.

Decided 1871-02-04

Spencer, J.

¶1I concur with my associates in the reversal of this judgment and the grant of a new trial in the case.

¶2I do not think the evidence established that plaintiff was a tona fide purchaser of' the note in that degree that would prohibit or prevent any equitable defense of the defendant being interposed. The most that can be said of this transaction is, that there was an equitable assignment of the proceeds of the note or of the note itself. There was no indorsement, no delivery, and the evidence of an assignment of the same or its proceeds is very slight, yet I think it was sufficient to call upon the defendant for any defense that tie could interpose and prove, under his answer.