#### Jacob Rothschild et al., Plaintiffs, *v.*Mary Goldenberg et al., Defendants.

(Supreme Court, New York Special Term,

January, 1901.)

Parties — When entitled to have their names stricken from the summons — Code C. P., § 723 — Collateral attack.

■Persons who have been made parties to an action to construe a will merely because they were trustees under it, are entitled to have their names stricken from the summons and pleadings upon acceptance by the Supreme Court of their resignations as trustees, and that court may grant the application not only by virtue of its inherent power but also under section 723 of the Code of Civil Procedure.

An order accepting such resignations cannot be attacked collaterally and can be vacated only in the proceeding in which it was made.

Two motions, the first being by two of a number of trustees, named in the will of Simon Goldenberg, deceased, to have the *647summons and pleadings amended by striking therefrom their names as defendants; and second, motion to vacate an order made by this court accepting the resignation of trustees.

Charles H. Brush (John J. Crawford, of counsel), for plaintiffs.

Jacob Steinhardt, for defendants.

Blanchard, J.

This is an application made by two of a number of trustees, named in the will of Simon Goldenberg, to have the summons and pleadings amended by striking therefrom their names as defendants. The action is brought by the executors under the will to construe a certain provision thereof. The trustees named in a clause of the will are made parties defendant. Since the commencement of the action the two defendants have been relieved of their trust in a proceeding instituted in this court, upon their resignation. They, having been made parties defendant solely by reason of the fact that they were acting trustees under this clause of the will, now seek to step out of the liti.gation because of the severance of the relationship which caused them to be made parties. I think it proper that they should be permitted to do so. The plaintiffs oppose the application, not because of any dispute as to the facts, but only because they contend that a defendant cannot be permitted to step out of an action upon his own application. I think, under the facts- and circumstances disclosed upon this application, they should be permitted to do so if the court has the power to permit it. Under the inherent power of the court and by virtue of section 723 of the Code of Civil Procedure, I think the court has ample power to grant the application. Christal v. Kelly, 88 N. Y. 285, 290; Riley v. Stern, 23 Abb. N. C. 435; Weil v. Martin, 24 Hun, 645, 646; Davis v. Mayor, 14 N. Y. 506, 527. The motion is granted upon defendants’ paying costs before notice of trial, and ten dollars, costs of this motion, and, there being no necessity of the service of amended pleadings, these are dispensed with and the case can retain its present position on the calendar.

This is an application to vacate an order made by this court accepting the resignation of trustees. It appears that this order was.made in a special proceeding entirely distinct from this action, and that order cannot be questioned here. It is not open to collateral attack, but can be vacated only upon a direct pro*648ceeding in the proceeding in which it was made. People v. Norton, 9 N. Y. 176; Reed v. Allerton, 3 Rob. 551. Besides, I am of the opinion that the court had power to grant the applications-of the trustees to resign their trust. Real Prop. Law, § 92; Brennan v. Willson, 71 N. Y. 502; Widmayer v. Widmayer, 76 Hun, 251; People v. Norton, *supra;*Matter of Robinson, 37 N. Y. 261. In any event, I do not think the plaintiffs were entitled to any notice, nor are they in a position to question that order. Motion denied, with ten dollars costs.

Ordered accordingly.