#### Mary Ellen Gueli *et al.,*App’lts., *v.*Catharine Lenihan *et*al., Resp’ts.

*(Supreme Court, General Term, First Department,*

*Filed January 24, 1890.)*

1. Parties—Replevin— On revival of action executor oe deceased' DEFENDANT PROPERLY MADE A PARTY.

Catherine Lenihan, now deceased, leased furniture to one McGowan» who is the husband of one of the plaintiffs. Both plaintiffs are her daughters. McGowan did not pay the rent reserved. The title to the furniture was disputed. The plaintiffs brought replevin and got possession of the furniture. Catharine Lenihan died pending the action. The plaintiff, McGowan’s wife, without reviving the action, procured a stipulation from Catharine Lenihan’s executor discontinuing the action. On a motion to revive the action and vacate the stipulation, the notice or order to show cause asking “ for other and further relief," the court not only granted what was asked, but also made the executor of Catharine Lenihan a defendant. *Held,*that such relief and order were proper to protect the estate of Catharine Lenihan.

2. Same.

A legatee under the will of Catharine Lenihan entitled to one-third, after payment of debts, and to a legacy of $500, it not appearing how much the-debts or personal estate were, was also entitled to be made a party, since-she might have an “interest in” the furniture, the title to which might, "he affected by the judgment.”

Appeal by the plaintiff, Mary Frances McGowan, from an order reviving this action, by making the executor of the estate of the deceased defendant Catherine Lenihan a defendant therein, and. adding Hora Gardner, a legatee under the will of such deceased defendant, as a defendant, and vacating a stipulation for the discontinuance of the action given by the' executor and any order entered thereon.

*Stephen 0.*Lochwood, for app’lts; *George Finch*and *Lyman L..*Settel, for resp’ts.

Daniels, J.

The action was prosecuted to obtain possession of household furniture leased by the testatrix Catherine Lenihan to-.the defendant Patrick E. McGowan, with the premises known as-109 East Twelfth street in the city of Hew York. He is the husband of the plaintiff Mary Frances McGowan, who with the other plaintiff are daughters of the testatrix. He went into possession of the leasehold property under the lease, and the occuEancy thereof. He allowed the action to go by default against imself and has not paid the rent reserved by the lease for the use of the furniture. And after the decease of the testatrix the appellant, without reviving the action, obtained a stipulation from the executor named in her will for the discontinuance of the action. In the proceeding in replevin, possession of the furniture was obtained by the plaintiffs and the discontinuance of the action seems to have been intended to leave the plaintiff Mary Frances McGowan and her husband in such possession, as the other plaintiff has withdrawn from the action. This furniture is claimed to be a portion of the estate of the deceased testatrix. And as her right to it was denied and contested in this action, it was entirely proper to revive it by making her executor a party to it as defendant

*293But as that relief was not expressly included in the order to show cause, the objection has been made that the court on this application could not regularly make this part of the order. The affidavits used in support of the motion do, however, sustain its propriety. He is the executor of the estate, and it is his duty to protect it from reduction and depletion by the illegal appropriation of this furniture by the appellant, ana that can most effectively be done by resisting her right to maintain this action. And as the order to show cause also includes the clause for “ other and further relief in the premises, as to this court may seem just and proper,” the revival of the action in favor of the executor, and his substitution as a defendant therein, were within its scope and comprehension. For it has been held as a rule of practice supported by this clause, that the court may give such further relief, beyond that specifically asked for, “ as is warranted by the facts plainly in the papers on both sides.” *People*v. Supervisors, *etc.,*45 N. Y., 196, 204; *Thompson*v. *Erie Railway Co.,*id., 468, 476. The affidavits used to support and oppose the motion plainly showed that the action should be revived and the executor made a party defendant to it, and thereby invested with the authority and position essential for the protection of this part of the estate committed by the will to his management and protection, and that under the order required this revival to be directed.

It also appeared that the stipulation given by him for the-discontinuance of the action was not only improvident, but conspicuously improper. For, without any reason justifying it, that permitted the appellant to continue to hold possession of the furniture, and protected her husband, who was a defendant in the: action, against his obligation created by the lease to pay an annual rent for the use of this furniture. If it had provided for such a discontinuance as would have resulted in the return of the property, the case then might not require this interposition of the court. But that evidently was neither the nature nor the object of the stipulation. It was designed by it to secure to the appellant the advantage which could alone result from maintaining her title to the furniture, and that as to this estate was so collusive as to necessarily avoid its success.

This part of the order was also supported by the facts. The regularity of the remaining part of the order making Hora Gardner a defendant in the action is not so well supported. She is shown to be a legatee entitled to one-third of the estate of the testatrix, after the payment of her debts, and a legacy of $500. The value of the personal estate has not been shown, neither has it in any form been affirmed that it will by these payments be exhausted. It may be inferred that such payments will not exhaust it. And if they will not, then she has an interest in this furniture which it will be necessary for her to protect against its future jeopardy from the collusive acts of the appellant and the executor. The motion was heard and disposed of without any denial that this was her position. And it ought to be assumed for the disposition of the appeal that her presence in the action will be necessary to protect her interest, actual or contingent, in *294this furniture. And if that is done then the order making her a party appears to be justified. For § 452 of the Code of Civil Procedure has declared “where a person not a party to the action has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.”

This is so broad as to include this case, and as this applicant seems to have so much interest in the subject of the action as to render it important for her to protect it, and the executor has al-. ready demonstrated his indisposition to faithfully do that himself, this part of the order was rightly made.

The case of *Delafield*v. Barlow, 107 N. Y., 535; 12 N. Y. State Rep., 494, was an action for partition, and the person proposed to he made a party had no interest in the land to be partitioned. A.nd In *Bump v. Gilchrist, 52*Hun, 6; 22 N. Y. State Rep., 197, thelegatee .had no interest whatever in the note which was in controversy. 'These cases therefore are not controlling over the present appeal. And no case seems to have arisen indicating it to be a duty to exclude this legatee from becoming a party to this action. Good faith :in the action as well as this mandatory language of the Code support her application. And the order should be affirmed, with ten dol lors costs, and the disbursements on the appeal.

Yan Brunt, P., J. and Brady, J., concur.