The joinder of the administratrix of Emmett H. Hollister as a defendant, with the surviving partners of the firm of which he was a member while living, is no valid ground of demurrer to the complaint. It appears from the complaint that the surviving partners are insolvent, and nothing can be collected from them, and when this is averred, the plaintiff may proceed in equity against the surviving partners, and the representatives of a deceased partner jointly. (Lawrence v. Leake Watt's OrphanAsylum, 2 Denio, 577; Parker v. Jackson, 16 Barb., 44, 45.) See also Van Riper v. Poppenhausen (43 N.Y., 68); Pope v.Cole (55 id., 124), which have a bearing upon the question as to the liability of the representative of a deceased partner, where the survivors are insolvent. As this is an equity action, the assignee of the firm, who had received its assets and never rendered any account for the same, was a proper party. He represents the firm, stands in its place so far as property is concerned, and the avails of the same in his hands are first liable to be appropriated to pay the demand of the plaintiffs. *Page 4 No valid reason exists why a person thus situated is not a proper party, in connection with the survivors of the copartnership and the representative of the deceased partner. If it were otherwise several actions would be required, and while no rule of law is violated, the ends of justice are answered by such a joinder. The case of Grant v. Shurter (1 Wend., 148), cited by the defendants' counsel, relates to actions at law, and contains nothing inconsistent with the views expressed. The same remarks are applicable to the other cases cited in the same connection.
The objection that the other creditors should have been made parties, or that the action should have been brought on their behalf, is not well taken. The fact that other creditors exist does not appear upon the face of the complaint, and independent of any thing which is apparent, the plaintiffs are the only creditors. Besides, under the act of 1860 (§ 64, p. 595), any creditor of the assignor may compel an accounting.
If there is a defect of parties it must be apparent to entitle a defendant to demur on that account. (Code, § 144.) So, also, if this defect actually exists, if it does not appear upon the face of the complaint, the objection should be taken by answer. (Code, § 147.) The joinder of the different parties presents no difficulty in the way of entering up a proper judgment, and even if the prayer of the complaint is erroneous in asking for a judgment against the survivors of the copartnership, for the balance remaining unpaid, the complaint is not demurrable for that reason. Upon the whole, as the action was of an equitable nature, all of the defendants, who, it appears, were in some way interested, were proper parties. The survivors, as the original debtors, had a right to be notified of the proceedings which affected their interests, as well as the administratrix, as the representative of a deceased copartnership, and the assignee who had the property of the firm in charge, and represented the entire copartnership. Without all of them there would be a want of proper parties. And in this form the rights of all the parties *Page 5 would be fully protected, and the whole controversy in which each of them had some interest be lawfully disposed of.
The judgment was right and should be affirmed, with costs.
All concur; except ALLEN and EARL, JJ., dissenting; CHURCH, Ch. J., not voting.
Judgment affirmed.