William Reynolds, Appellant, v. Nathan Kaplan, Individually, and as Administrator, etc., of Sarah Kaplan, Deceased, and Others, Defendants

William Reynolds, Appellant, v. Nathan Kaplan, Individually, and as Administrator, etc., of Sarah Kaplan, Deceased, and Others, Defendants. Hobaoe Q. Lansing, Attorney of" Record for Plaintiff, Respondent.' Foreclosure—judgment creditors of a life tenant not made parties-—-the substitution of another plaintiff’s attorney granted unconditionally. Upon an appeal from an order which imposed the payment of $125 as a com dition of allowing the plaintiff to substitute another attorney to" represent him in the action, it appeared that the action, which was brought for the foreclosure of a mortgage, Was instituted at the request of the husband of the deceased owner who died intestate (the plaintiff’s attorney agreeing that no expense because thereof should be incurred by the plaintiff). The husband of the mort- ■ gagor had judgment creditors whom the plaintiff’s attorney did not make parr ties to the action, which proceeded to judgment and sale, Because of such omission the. purchaser at the sale refused to accept title; , Held, that the judgment creditors of the husband were necessary parties to the action, and that by reason of their omission as parties defendant, the services rendered by the plaintiff’s attorney were of no value; That a substitution of attorneys should be granted unconditionally. Appeal by the plaintiff, William Reynolds, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the. office of the clerk of the county of Kings on the 25th day of March, 1896, as imposes as a condition for a substitution of attorneys for the plaintiff-the payment of the sum of $125, and also from an order entered in said clerk’s office on the 31st day of March, 1896, denying the plaintiff’s motion for a substitution of attorneys for non-compliance with the conditions of the first-mentioned order of March 25,1896. William E. Osborne and Archibald O., Bhenstone, for the appellant. Horace Q. Lansing, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The action is for the foreclosure of a mortgage of real estate. The mortgagor died intestate, leaving her husband and children, to whom the property descended. It appears that the foreclosure was instituted at the request of the husband of the deceased owner, the plaintiff’s attorney, in a letter to the plaintiff, agreeing that no expense should be incurred by the latter. There were outstanding judgments against the husband. The judgment creditors were not made parties to the action. The action proceeded to judgment and sale. The title was rejected by the purchaser for the failure to make the judgment creditors of the husband parties. We think it too plain to justify discussion that the judgment creditors of' the husband, the life'tenant, were necessary parties to the action. Ordinary care required that the attorney should have made such creditors parties. No good title can be given under the decree rendered in this action. The plaintiff will be driven to either a. strict foreclosure or, as probably the wiser course, to apply to vacate the decree and bring the judgment, creditors into the suit. The services rendered by the attorney have, therefore, been of no value to the plaintiff. For this reason the attorney is not entitled to compensation for them. So much of the order as is appealed-from -should be reversed and motion granted unconditionally, with ten dollars costs and disbursements. All concurred. Order so far as appealed from reversed and motion granted unconditionally; with -ten dollars costs and disbursements.