abutting owners not necessary party defendants under the provisions of section 379, by giving to any person interested in the property, or whose interest may be affected by the judgment, the right, although not specifically named as a defendant, to enter an appearance and answer the complaint, and oppose the registration of plaintiff's property, or set up a cross demand to have the title registered in his own behalf, and that section 383 provides for the filing of a caution entitling the person filing it to written notice of any application for registration. That the only allegation in the complaint referring to the appellant was that he was an abutting owner, and that under such conditions if a property owner in an action of this character makes a person having no interest in the subject matter, and not a necessary party under the statutory requirements, a party defendant, he does so at his peril, and if his complaint. alleges no facts constituting a cause of action against such party it is as to him demurrable, if a demurrer is authorized or can be made available, and that section 385 should not be so construed as to deprive a party, even though improperly joined in the action, of the right to demur.

Accordingly the interlocutory judgment overruling the abutting owner's demurrer was reversed and the demurrer sustained. The substance of this decision was that if no cause of action is stated against an abutting owner, but he is named as a party, his demurrer setting up that the complaint alleges no facts constituting a cause of action against him should be sustained, but that such abutting owner against whom no cause of action is stated, is not entitled to contest the constitutionality of the law by his demurrer, nor to test generally the sufficiency of the complaint upon any ground in which he has no interest, and that such defendant, against whom no cause of action is alleged,

has no interest in any question of defect of parties defendant, or in determining whether any cause of action under the statute is sufficiently alleged.

Duffy v. Shirden, 136 A. D. 894, decided without opinion, but cited in Duffy v. Shirden, 139 A. D. 757, and there stated to have affirmed an order denying a motion of defendant to vacate and set aside the summons, notice of objection of action and their service upon the defendants for the reason that they failed to state facts sufficient to constitute a cause of action.

Duffy v. Shirden, 136 A. D. 920. Motion for leave to appeal to the Court of Appeals denied.

Smith v. Martin, New York Law Journal October 5, 1910, Supreme Court, Special Term, Kings County, Putnam J. (69 Misc., 108.) Motion for judgment on the pleadings for failure of the Attorney-General to specifically deny allegations of the complaint.

The provisions of the law as amended by chapter 627 of the laws of 1910 intimate that the Attorney-General will only be expected to intervene when a complaint has notified him of the interest on the part of the State. The amendment affected actions pending at the time of its adoption, but it did not invalidate a complaint filed and acted upon by an order of the court previous to its adoption. The Attorney-General is not officially charged with knowledge of all records of private titles throughout the State. The purpose of the statute is to create a judgment in rem perpetually conclusive. The legislation provides for a decree that shall include the title to an interest that is to be as lasting as the land itself. If the State has any interest in the res, or its officers are not informed whether or not it is so interested, the rights of the people are not to be barred on a point of pleading for failure of the

Attorney-General by his answer, containing merely a general denial, to deny specific allegations of the complaint filed before the amendment took effect. The motion was denied with leave to the plaintiff to file a supplemental allegation stating what claim or interest the State of New York had.

Smith v. Martin, 142 A. D. 60, Second Dept. Dec., 1910. Appeal from order vacating upon motion an ex parte order allowing an adjoining owner to appear and answer in an action for registration of title. In this case the court considered the complaint, the answer of the adjoining owner, and the affidavits on which the controversy was decided.

It appeared there from that the only interest alleged by the adjoining owner was that he had a party wall easement in the property sought to be registered which conformed precisely to the right ascribed to him in the complaint. The adjoining owner asserted no reason for becoming a party, except that the judgment in the action must necessarily determine the location of the boundary line in respect to the party wall.

The court held that an adjoining owner who owned an easement in a party wall, but who sought to proffer an answer which did not contain any defense based upon such ownership, and did not ask for any affirmative relief, should not be allowed to appear for the purpose of serving such an answer. It intimated that he should be allowed to appear to watch his interests, although the complaint correctly set forth his interest in the party wall, for he would have a right to appear and see to it that the judgment accorded with the pleading.

The court further stated that the judgment, whatever it might be, could not estop him as he was excluded from the record on the plaintiff's motion. It affirmed the order

appealed from on condition that the plaintiff stipulate that any judgment and order which might be entered and any certificate of registration of title that might be issued in connection therewith should contain a recital that it was without prejudice to the rights if any of the adjoining owner who was thus stricken from the case as a party.

It is interesting to note that here provision was made for registering the title subject to the rights of an adjoining owner who, on the application of the plaintiff, was not permitted to appear and answer.

Hawes v. United States Trust Company, 142 A. D. 789 (Appellate Division, First Department, February 3, 1911), was an appeal from an order denying the appellant's motion for leave to enter his appearance and answer a complaint. The appellant was an abutting owner, and the boundary line between the plaintiff's and the appellant's property ran through a retaining wall, in which, to the extent that it stood on the plaintiff's premises, the appellant claimed an interest or easement. The certificate of the examiner stated that there were no persons, other than those named in the certificate, who had any right or interest in the property, and that there were no easements therein, and the appellant was not named as the owner of an adjoining parcel. Pending the hearing of a motion for leave to appear, a notice of appearance was served by the appellant, and returned on the ground that the appellant was not entitled as a property owner to appear in the cause. The appellant did not seek to oppose the registration of the plaintiff's title, but sought to appear for the purpose of protecting his interests, to the end that he might not be concluded by the judgment of registration.

The court, after stating certain of the provisions of the act, said that they showed that all persons having an interest

in the property by way of easement or otherwise are necessary parties, and that so far as ascertainable it is the duty of the plaintiff to name them, and that it was the duty of the examiner of titles to state the names of all the abutting owners whose names could easily have been ascertained; That it was unnecessary to determine whether, in view of the failure to name the appellant, he would be concluded by the judgment, for he was not bound to lie by and take that chance. It indicated that it was as much in the interest of the plaintiff as of the appellant that the appellant should be made a party in order that there might be no doubt of the conclusiveness of the judgment. It decided that a party asserting an interest or easement in the premises, the title to which was sought to be registered, had a right to appear in the cause for the purpose of guarding that interest, and as he was not made a party by the plaintiff it was the duty of the court to allow him to appear.

The court viewed the case of Smith v. Martin, supra, as authority for the proposition that the appellant was entitled to appear for the purpose of setting up his easement and having it protected by the judgment. It expressed the view that if the time to appear and answer had not expired the appellant was entitled, without leave, to enter his appearance and answer the complaint; that the filing of the notice of appearance and of the answer with the register, and service of copies upon plaintiff's attorneys, would be effectual, and that service upon the attorney alone would probably suffice.

It expressed the view that section 389 was not intended to be limited in its application to persons desiring to oppose the application for registration, or to set up a cross demand to have the title registered in their own behalf, but that it was intended to allow any person interested in the prop