b. Appointment before action.-An infant plaintiff must have a guardian appointed before he commences his action. If he fails to do so, the defendant may move to have the proceedings set aside for irregularity. Freyberg v. Pelerin, 24 How. 202. See also Hoftailing v. Teal, 11 How. 188; Hill v. Thacter, 2 Code R. 3; S. C. 3 How. 407. But it is too late to move after an answer has been served. Parks v. Parks, 19 Abb. 161, and the irregularity may be cured or waived; it will be cured if the defendants do not object until the plaintiff has arrived at full age. Rutter v. Puckhofer, 9 Bosw. 638. seems that the rule requiring the guardian ad litem to be the general guardian, an attorney, etc., or other officer of the court, does not apply to a guardian for the plaintiff. Cook v. Rawdon, 6 How. 233; S. C. 1 Code R. N. S. 382. It should be a responsible person, as he is liable for costs. Id. d. District courts.-As to proceedings in these courts, see Laws of 1857, ch. 344, § 11. wife is not necessary, when she joins with e. Infant wife.-A guardian for an infant her husband in an action, unless it is to recover her separate property. Cook v. Rawdon, c. Who should be appointed.-It | 6 How. 233; S. C. 1 Code R. N. S. 382. III. ON On an appeal from a judgment entered by default, if no guardian has been appointed in the court below, the appellate court will make such appointment either at the instance of the APPEAL. opposite party, or the infant himself. Fish v. Ferris, 3 E. D. Smith, 567; Moody v. Gleason. 7 Cow.482. The guardian will not be appointed until after the return is filed. Id. § 116. [96.] (Am'd 1849, 1851, 1852, 1862, 1863, 1865.) Guardian, how appointed. The guardian shall be appointed as follows: 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 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 § 116.] PARTIES TO ACTIONS. 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. I. THE GUARDIAN. a. His character and duties.-SAV-| AGE, J., said that the object of the appointment of a prochein ami was, that there might be a responsible person accountable for the costs, before the court. People ex rel. Baker v. New York Com. Pleas, 11 Wend. 164. In the appointment of a guardian ad litem, the court should always select such person as will be most likely to protect the rights of the infants. Thus, where the father is complainant, the next nearest relative should be heard on the appointment of a guardian. To authorize the appointment of a guardian ad litem for an infant defendant, it should appear by the petition, that the infant has either been personally served with process, or has been proceeded against as an absentee. Grant v. Van Schoonhoven, 9 Paige, 255; but a voluntary appearance is equivalent to a personal service. See note I, § 115, ante, and Varian v. Stevens, 2 Duer, 635. He is a species of attorney, whose duty it is to prosecute or protect the rights of his ward. Knickerbacker v. De Freest, 2 Paige, 304. Ilis admissions are not necessarily binding upon his ward, nor will the infant be preju- Payment to him is not a legal satisfaction, b. Liable for costs, etc.-The guar- but He may be reimbursed out of the proceeds of the action for his disbursements, etc., the court will not order such repayment after hands. Id. The guardian is under no obligathe funds have passed out of the attorney's the suit; nor can he be compelled to incur tion to make advancements for the purposes of any liability other than for the costs of his adversary, and for these he has his remedy against the estate of the infant. Id. Code, § 316. II. THE APPOINTMENT a. When the appointment may be made.-The guardian of an infant plaintiff must be appointed before the action is commenced. Hill v. Thacter, 3 How. 407; 2 Code R. 3. See note II, § 115, ante. And an action cannot now be commenced by next friend. Hoftailing v. Teal, 11 How. 188. If the defendant serves an answer, it is then Where a trial and verdict have been had, OF GUARDIAN. v. Puckhofer, 9 Bosw. 638; S. C. 19 Abb. objection is raised, the defect is cured. Rutter 161, n. c. Action without controversy.— "There is no statute that authorizes the appointment of a guardian for an infant, to appear for him in an action without controversy." Fisher v. Stilson, 9 Abb. 33. d. The application should be made to the court; but in the first judicial district a guardian ad litem may be appointed at chambers. Disbrow v. Folger, 5 Abb. 53. The provisions of this section are intended for the benefit of the infant, by giving him twenty days after the service of process, to make his own selection; after that time the but the infant may still make the application plaintiff or any relative or friend may apply, if the other parties authorized fail to do so. McConnell v. Adams, 1 Code R. N. S. 114. e. Who to be appointed.-A person cannot be appointed on his or her own nomiv. E. C. B. 28 Barb. 299; S. C. 8 Abb. 44. nation without the consent of the infant. E. B. The guardian ad litem for the plaintiff need not be the general guardian, or an attorney, etc., or other officer of the court, as prescribed by Rule 60. Cook v. Rawdon, 6 How. 233; S. C. 1 Code R. N. S. 382. Where an infant defendant is a married woman, her husband is usually appointed her guardian ad litem, if he has no adverse interest, etc. Disbrow v. Folger, 5 Abb. 33; 1 Barb. Ch. Pr. 85. But see Cook v. Rawdon, 6 How. 233; S. C. 1 Code R. N. S. 382. f. Order of appointment. - A copy order appointing a guardian of a non-resident infant defendant is valid, although deposited in the post office before the original was actually filed, if the order was made before mailing the copy. It would become effectual from the time of the filing. Brainerd v. Hey drick, 32 How. 97; S. C. 2 Abb. N. S. 47; 49 Barb. 62. g. Lunatic infant.-If the committee of such infant resides out of the jurisdiction of the court, he properly applies by petition for the appointment of a guardian_ad_litem residing within the jurisdiction. Rogers v. McLean, 31 How. 279; Rev'g S. C. 10 Abb. 306. h. Allegation in complaint.—If an infant sues by guardian, the complaint should contain an allegation of the appointment of such guardian by the court. Grantman v. Thrall, 44 Barb. 173; Hulbert v. Young, 13 How. 413. thereto, as to the appointment of guardians in i. Partition.-See §§ 420, 448, and notes partition suits. See Rules. § 117. [97.] Who may 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. I. WHO ARE PARTIES IN INTEREST. a. General rules.-"This is now the rule in all cases, whether such as were formerly subjects of suits in equity or of actions at law." Loomis v. Brown, 16 Barb. 325, except those cases which are still governed by the Revised Statutes. See § 448, post, and notes thereto. The objection that all the parties in interest are not made plaintiffs, will be deemed waived if it is not set up in the pleadings. Ireland v. City of Rochester, 51 Barb. 415 (435.) If the contract between plaintiff and defendant is entire, and the plaintiff alone can enforce it, he is the only proper party plaintiff. Yerby v. Kirkpatrick, 2 Rob. 227; Hastings V. McKinley, 1 E. D. Smith, 273; Cumings v. Morris, 3 Bosw. 560; S. C. Aff'd, 25 N. Ÿ. (11 Smith), 625. Persons having distinct claims against the same individual cannot be allowed to maintain a joint suit against him unless they have a common interest in the subject-matter of the action. Wood v. Perry, 1 Barb. 114 (122.) b. Tenants in common.-In an action for use and occupation, tenants in common may properly join. Porter v. Bleiler, 17 Barb. 149. They must join in an action for damages for injury to the real estate. De Puy v. Strong, 3 Keyes, 603; S. C. 37 N. Y. (10 Tiff.), 372; 4 Abb. N. S. 340; 4 Trans. App. 239; see also Austin v. Hall, 13 Johns. 286; Bradish v. Schenck, 8 id. 151; Brotherson v. Hodges, 6 id. 108, and Decker v. Livingston, 15 id. 478. See § 118, note I, subd, a, post. Where an award had been made for lands taken for public purposes, and an action was brought for one-half of the same by one of two tenants in common, it was held on demurrer that there was no defect of parties. Van Wart v. Price, 14 Abb. 4, n. Tenants in common of personal property, must join in trespass or trover for taking or converting the same. Gock v. Keneda, 29 Barb. 120; Rice v. Hollenbeck, 19 Barb. 664; Wheelwright v. Depeyster, 1 Johns. 471; Putnam v. Wise, 1 Hill, 234. In such cases the objection of non-joinder should be taken by demurrer or plea in abatement; but if not so taken, the defendants can not raise the objection afterward, when those sue who should have been joined in the first action. Cases cited above, and 5 Hill, 59, n. Joint owners of a vessel must sue together for the hire of such vessel. Coster v. New York & Erie Railroad Co. 3 Abb. 332. Or for freight carried by such vessel. Donnell v. Walsh, 33 N. Y. (6 Tiff.), 43; Merritt v. Walsh, 32 N. Y. (5 Tiff.), 685. See Laws 1864, ch. 43. See § 118, note I, subd. a. A settlement of the action by one joint tenant, without the consent of the other, wili only enure as a settlement of the damages belonging to the party settling. Gock v. Keneda, 29 Barb. 120. See § 121 and notes thereto, post. c. Bond. Where a statutory bond is given to several attaching creditors, under 2 R. S. 12, § 57, any one of such creditors may sue on such bond, in the joint name of all the obligees, in respect to all their demands, or in his own name in respect to his individual demand. Pearce v. Hitchcock, 2 N.Y. (2 Comst.), 388; overruling Arnold v. Tallmadge, 19 Wend, 527. In an action upon an injunction bond, all the obligees may join as plaintiffs, although their claims may differ in character and amount, Loomis v. Brown, 16 Barb. 325. d. Partners.-The terms of § 111 are imperative, except as provided in § 113, and every partner, whether active or dormant, ! open or secret, is a necessary party in an action for the recovery of a partnership debt. Secor v. Keller, 4 Duer, 416. But suits in relation to the affairs of a limited partnership, may be brought by and against the general partners, without reference to the others. 1 R. S. 776, § 14. See Laws of 1864, ch. 43. See also Schulten v. Lord, 4 E. D. Smith, 206. The members of a hose company in the city of New York are not partners, nor have they such a community of interest as to enable them to sue jointly for libel. Giraud v. Beach, 3 E. D. Smith, 337. e. Executors. One of several executors may cite his co-executor before the surrogate, or maintain an action against him in equity for an accounting. Wood v. Brown, 34 N. Y. (7 Tiff.), 337, (344); but see 41 N. Y. (2 Hand), 46. Co-executors must all join in actions to recover debts due to the estate, if letters testamentary have been issued to them and they have properly qualified. Scrantom v. Farmers' and Mechanics Bank of Rochester, 33 Barb. 527; S. C. Aff'd, 24 N. Y. (10 Smith), 424. Those to whom letters testamentary have not been granted and who have not qualified, need not be joined. Laws of 1838, ch. 149; Moore ▾ Willett, 2 Hilt, 522. An executor or administrator may sue individually or in his representative capacity, on a note given him, on account of the estate of his testator or intestate. Merritt v. Seaman, 6 N. Y. (2 Seld.), 168; Bright v. Currie, 5 Sandf. 433; S. C. 10 N. Y. Leg. Obs. 104. f. Creditors of a corporation, if they have a common interest, are proper, though not necessary parties to a complaint. Conro v. Port Henry Iron Company, 12 Barb. 27, (58); and cases there cited. g. Nuisance.-If a nuisance is a common injury, several parties who reside in the neighborhood may join in an action to restrain it. Brady v. Weeks, 3 Barb. 157; Peck v. Elder, 3 Sandf. 126. h. Trust fund.-Where a fund is in the hands of a trustee, with directions to pay it over to the different persons in different proportions, all who are thus interested are and where the proportionate share of each disproper parties to an action against the trustee ; tributee has been ascertained by a proceeding binding on the trustee, each may maintain a separate action for his share. General Mutual Insurance Co. v. Benson, 5 Duer, 168, (176.) each person who has deposited money with Under the statute to prohibit gaming, etc., a stakeholder, may sue for and recover the same, but can only recover the amount deposited by himself, and need not join with him others who are interested in specific portions of the deposit. Ruckman v. Pitcher, 20 N. Y. (6 Smith), 9; S. C. before, 1 N. Y. (1 Comst.), 392; 13 Barb. 556. i. Road commissioners of separate towns cannot unite in an action to recover a penalty for an encroachment on a road which was on a line between the towns. Bradley v. Blair, 17 Barb. 480. j. Directors of corporation. — Two directors of an incorporated company cannot maintain an action, in which other of the directors, some of the preferred stockholders of the company and the company itself, are made defendants, to restrain the prosecution of actions against the company, and to secure an accounting and the distribution of earnings, etc. Gould v. Thompson, 39 How. 5. See notes under § 111, ante. § 118. [98.] (Am'd 1849, 1867.) Who may be joined as defendants. 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. I. ACTIONS RELATING TO REAL ESTATE. a. Action by vendee.-When lands are conveyed under full covenant, and afterward an unsatisfied mortgage is discovered, the vendor and mortgagee may be joined as parties defendant in an action to obtain the mortgage canceled of record. Wandle v. Turney, 5 Duer, 661. Mortgagees of a tract of land were held to be improperly joined in an action for the specific performance of a contract to convey, brought by the purchaser of a portion of such tract. Chapman v. Draper, 10 How. 367; S. C. Aff3å, 17 N. Y. (3 Smith), 125, sub nom. Chapman v. West. Where A executed a contract of sale of certain lands to B, and before its performance, an action was brought against the lessees of the land to restrain waste, it was held that both A and B were necessary parties to the action. Kidd v. Dennison, 6 Barb. 9, (17.) In an action to set aside a mortgage as usurious, the assignee of the mortgage may properly be joined as a party defendant with the mortgagee. Niles v. Randall, 2 Code R. 31. b. Foreclosure of mortgages.-No man's rights shall be finally decided until he has had full opportunity to appear and defend them; and a deed given under a sale in foreclosure, will be a bar only to those who were parties to the suit. Denton v. Nanny, 8 Barb. 618. The owner of the equity of redemption of a mortgage is a necessary party in an action for its foreclosure, and that, although he claims by a deed unrecorded at the time of the commencement of the suit. Hall v. Nelson, 14 How. 32; S. C. 23 Barb. 88; Griswold v. Fowler, 6 Abb. 113. The objection may be taken by answer. Ib. In an action to foreclose a mortgage, one with whom the mortgagor had contracted to convey the premises, was held to be a proper, though not a necessary party defendant. Crooke v. O'Higgins, 14 How. 154. Where one to whom the premises have been conveyed, has assumed and agreed to pay the mortgage, the mortgagor is not a necessary party to the action to foreclose. Drury v. Clark, 16 How. 424. See 30 N. Y. (3 Tiff.), 448. "It is a general rule that besides the parties to a mortgage, those only are proper parties to a suit for its foreclosure, who have, subsequent to the mortgage, acquired rights or interests under the mortgagor or mortgagee. The plaintiff may also make prior incumbrancers parties to the action, for the purpose of having the amount of such incumbrances liquidated and paid out of the proceeds of the sale; or he may, at his option, have the premises sold subject to such prior incumbrances." Holcomb v. Holcomb, 2 Barb. 20. See subd. a, supra. But a claim adverse to the title of the mort gagor, and prior to the mortgage, cannot be tried in a foreclosure suit by joining the claimant as a party defendant. Story v. New York & Harlem R. R. Co. 6 N. Y. (2 Seld.), 85; Rev'g S. C. 6 Barb. 419. The wife of the mortgagor should be joined in an action of foreclosure, in order to bar her right of dower, although the mortgage was given for the purchase money. Mills v. Van Voorhies, 20 N. Y. (6 Smith), 412; 10 Abb. 152; Rev'g S. C. 23 Barb. 125; Denton v. Nanny, 8 Barb. 618. So of the wife of the grantee of the equity of redemption. Ib. See § 114, note I, subd. a, ante. c. Tenants in common.-An interest in a pew is an interest in real property; tenants in common under a lease in perpetuity, are severally seized, and a joint action cannot be maintained against them for an assessment. St. Paul's Church in Syracuse v. Ford, 34 Barb. 16. See note I, subd. b, § 117, ante. d. Action for rent. A joint action against several defendants, may be brought to recover rent reserved upon several pieces of land owned by them in severalty, and a several judgment may be rendered against them for their respective proportions of rent. Van Rensselaer v. Layman, 39 How. 9. e. Partition.-See § 448, post, and not s as to joinder of parties in partition. See § 455 as to other actions relating to real property. II. FRAUDULENT CONVEYANCES, ASSIGNMENTS, ETC. a. Action to set aside conveyances, etc.-Where the cause of action is the same, viz., the fraudulent disposition of the debtor's property to the several defendants, although in separate parcels, all the grantees and incumbrancers should be brought before the court in the same action. Durand v. Hankerson, 39 N. Y. (12 Tiff.), 287; Morton v. Weil, 33 Barb. 30; S. C. 11 Abb. 421; Sage v. Mosher, 28 Barb. 287; Reed v. Stryker, 12 Abb. 47; Rev'g S. C., 6 id. 109; Jacot v. Boyle, 18 How. 106. Although one is a non-resident, he should be made a party. Gray v. Schenck, 4 N. Y. (4 Comst.), 460. But one who accepted the conveyance in good faith, and transferred it in accordance with the trust, need not be made a party. Spicer v. Hunter, 14 Abb. 4. In an action to set aside an assignment as fraudulent, the debtor should be made a party defendant. Lawrence v. Bank of the Republic, 35 N. Y. (8 Tiff.), 320; S. C. 31 How. 502; Rev'g S. C. 3 Rob. 142; Wallace v. Eaton, 5 How. 99; S. C. 3 Code R. 161. As to when creditors should be made par Platt, 32 Where an action was brought against the original debtors and their assignees, to set aside the assignment on account of preferences given to certain creditors, it was held not necessary to join such creditors as parties defendant. Bank of British North America v. Suydam, 6 How. 379; S. C. 1 Code R. N. S. 325. In an action to set aside certain conveyances from the judgment debtor to one of the defendants, and from such grantee to another of the defendants, the judgment debtor was held to be a necessary party. Shaver v. Brainard, 29 Barb. 25; and see 6 N. Y. (2 Seld.), 190. b. Action for accounting. — In an action against assignees to have an account ing, and to substitute certain preferences in the distribution of the trust fund, it was held that the assignors and creditors of a lower class than the proposed substitution were necessary parties defendant. Garner v. Wright, 24 How. 144; S. C. Aff'd, 28 How. 92. c. For application of assets.—In a |