Opinion
May 7, 1915.
Burt D. Whedon, for the appellant.
Thomas D. Adams [ Charles A. Brodek and Edgar J. Nathan with him on the brief], for the respondents.
The material facts are set forth in the opinion on the appeals from the orders sustaining the demurrers of the defendants Poor and Bennett ( 167 App. Div. 784), which is to be handed down herewith.
The respondent company demurred on the ground that the plaintiff has not legal capacity to sue, and that the amended complaint fails to state facts sufficient to constitute a cause of action. The first ground of the demurrer is sufficiently considered in the opinion in the other case. The company was a proper if not a necessary party, and that is sufficient to warrant its being joined as a party defendant in a suit in equity, notwithstanding the fact that no relief is demanded against it. ( Mawhinney v. Bliss, 124 App. Div. 612.) If the stockholders are not entitled to a distribution of the fund and property of the Anthony Company, for which the individual defendants are accountable, then the Anthony Company is entitled thereto, and in either event it is a proper if not a necessary party, for either it is, or its stockholders in its right are, interested in the consideration received by the individual defendants for which they are accountable. ( Mawhinney v. Bliss, supra.)
It follows that the order should be reversed, with ten dollars costs and disbursements, and plaintiff's motion for an order overruling the demurrer granted, with ten dollars costs, but with leave to respondents to withdraw the demurrer and interpose an answer on payment of the costs of the appeal and of the motion.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, motion granted, with ten dollars costs, with leave to respondent to withdraw demurrer and to answer on payment of costs in this court and in the court below.