People ex rel. Petry v. Bevoise , 34 N.Y. Sup. Ct. 596 ( 1882 )

Cullen, J.:

We think that Petry is a proper party plaintiff to this action. He certainly has an interest in the subject-matter and in obtaining the judgment demanded. This, under section446, Code of CivilProcedure, justifies his appearance as plaintiff. Under the former Code he would have been a necessary party. (People ex rel. Crane v. Ryder, 12 N. Y., 433.) It may be that since the change in phraseology of the new Code he is not now a necessary party, but we do not think he has ceased to be a proper party. The statement in the complaint, “ The People complaining on the relation of George Petry,” is a sufficient allegation that the action is brought on the relation of Petry, especially as Petry joins in it. We doubt if a defect in that respect would be ground for a demurrer.

Order appealed from should be affirmed, with costs, with leave to defendant to answer over on payment of costs.

Present — Dykman and Cullen, JJ.; Barnard, P. J., not sitting.

Judgment affirmed, with costs, with leave to answer in twenty days on payment of costs.