#### George C. Olin, Plaintiff, *v.*Max Arendt et al., Defendants.

(Supreme Court, New York Special Term,

February, 1899.)

Foreclosure — Frivolous demurrer by executors against whom relief is not demanded.

Although a complaint in foreclosure alleges that certain defendants have or claim to have, as executors and trustees, some interest in or lien on the premises which, if any, accrued subsequent to the mortgage foreclosed, and although judgment against them as individuals is demanded for any deficiency, their demurrer, as executors and trustees, to the complaint as not stating a cause of action against them in their representative capacity will be struck out as frivolous where there is no demand for any relief against them In such capacity.

Motion for judgment on demurrer.

C. W. Hartridge, for motion.

C. B. Hubbell, opposed.

Gildersleeve, J.

The action is to foreclose a mortgage. The complaint, among other things, alleges that the defendants, Arendt, Ochen and Gaspar, as executors and trustees under the last will and testament of Julius Lipman, deceased, have or claim to have some interest in, or lien upon, the said mortgaged premises, or some part thereof, which interest, or lien, if any, has accrued subsequently to the lien of the said mortgage. These defendants, as such executors and trustees, interpose a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action against these defendants, as such executors and trustees. The plaintiff makes this motion for an order overruling the demurrer as frivolous and for judgment thereon for the relief demanded in the complaint against said defendants. The complaint *489demands no affirmative relief against these defendants in their representative capacity, although they are also sued individually, and relief demanded against them individually, for any deficiency that might remain after the foreclosure sale. The demurrer is interposed by them in their representative capacity only. Section 447 of the Code provides that “ 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 defendant for the complete determination or settlement of a question involved therein; except as otherwise expressly prescribed in this act.” The complaint, as we have seen, alleges that defendants, in their said representative capacity, have, or claim to have, some interest in the mortgaged premises. It was, therefore, proper to make them parties defendant in order to have a complete determination of the questions involved in the action. Ho affirmative relief is demanded against these defendants in their said representative capacity, as we have seen, and these defendants, as such executors and trustees, are not called upon to plead, unless they wish to attack the priority or validity of the plaintiff’s mortgage. If there should be a deficiency on the mortgage, after the sale of the premises, these defendants, in their said representative capacity, could not be called upon to pay the same. It seems to me that the demurrer is frivolous, within the meaning of section 537 of the Code, and that plaintiff is prejudiced thereby. The motion for an order overruling the demurrer, and for judgment thereon for the relief demanded in the complaint against these defendants in their said representative capacity, must be granted, with $10 costs to the plaintiff.

Motion granted, with $10 costs to plaintiff.