The issue in this case, at least as presented by the parties, is a simple one. A levy upon a real property interest may be effected merely by filing of proper papers in the office of the County Clerk (Civ. Prac. Act, § 917, subd. 1). In order, however, for the levy and the subsequent personal service of the process outside the State to stand the complaint must state a sufficient cause of action against defendant Seymour Scott as trustee.
The complaint charges that defendant Seymour Scott as trustee engaged plaintiff as broker on behalf of the trust and that he defaulted, as did the trust, in the obligation to pay commissions due him. It also appears from the attachment papers that Seymour Scott is a nonresident, and it is not disputed that he has no personal assets in the State.
While it is true, as stated in the majority opinion and in the authorities cited, that trustees who may not act except jointly must sue together in order that the action be sustained, it does not necessarily follow that a complaint is insufficient merely because all such joint trustees are not joined as party defendants in an action against one or some of them. Whatever the rule may have been in ancient times, it is now true that a nonjoinder is not fatal (Civ. Prac. Act, § 192). On the contrary, a nonjoinder may be attacked only by motion, and then the procedure to be followed is that prescribed by section 193 *312of the Civil Practice Act. Consequently, the complaint in this case, on the issue of nonjoinder, stands as conditionally sufficient. Hence, defendant Seymour Scott has failed in his attack on the attachment.
In passing it should be noted that the attempted intervention by Martin Scott without leave of the court gives him no status whatever. Moreover, he makes only a passing attempt to justify his status.
Accordingly, I am constrained to dissent and vote to affirm the order dismissing the motion made by defendant Seymour Scott and to dismiss the purported appeal by Martin H. Scott.
Botein, P. J., and Eager, J., concur with Babin, J.; Breitel, J., dissents in opinion in which Noonan, J., concurs.
Order entered on June 7, 1961 reversed, on the law, with $20 costs and disbursements to the appellants, and the motion granted.
Settle order on notice.