firmance of a judgment which rests upon a verdict for the defendant, where that affirmance is based upon the proposition that the case ought never to have been sent to the jury at all, places the plaintiff in a very unfortunate position; for, if the complaint had actually been dismissed, the plaintiffs would not be concluded on the merits, but might have brought another action and supplied the evidence which they lacked upon the trial of the present action, whereas, now, with a judgment against them founded upon the verdict, they are barred from maintaining any other suit on the same claim. The court in discussing this situation, say:

"It seems to me quite clear that where, upon such a record as this, it is manifest that the complaint ought to have been dismissed at the end of the case for the plaintiffs on the ground that the evidence in their behalf did not entitle them to any recovery whatever, this court possesses the power so to modify the judgment as to bring about the same result as would have followed a correct disposition of the motion to dismiss at the Trial Term, notwithstanding the fact that the cause was permitted to proceed to a verdict. Upon an appeal from a judgment or order, the Appellate Division of the Supreme Court 'may reverse or affirm, wholly or partly, or may modify the judgment or order appealed from.' Code Civ. Proc. § 1317. The power of the court to effect, by means of a modification of the judgment, the ends which ought to have been attained upon the trial, has repeatedly been asserted in the strongest terms. That the trial court could have modified the judgment upon the verdict in this case, so as to give it only the effect of a judgment upon a dismissal of the complaint at the end of the plaintiffs' case, can hardly be doubted. N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 357, 361; Bohlen v. M. E. R. Co., 121 N. Y. 546, 550 [24 N. E. 932]. This tribunal has the power in the furtherance of justice to do precisely what the Trial Term could have done in this respect. To that end we may modify the judgment in such a way as not to leave it conclusive against the plaintiffs in the event of their being able hereafter to produce sufficient evidence to sustain a recovery."

In this case the court modified the judgment by striking out the provision that "the complaint is dismissed upon the merits," and inserting therein a statement that it is dismissed with the same effect in all respects as though the defendant's motion to dismiss the same had been granted at the close of plaintiff's evidence, and, as thus modified, judgment affirmed, without costs. Haddock v. Haddock, 75 App. Div. 565, 566, 78 N. Y. Supp. 304, and authorities there cited.

In the instant case the defendant's motion for a nonsuit was denied, the case proceeded to judgment, and the plaintiff, making no suggestion that he might meet the requirement of more proof, carried the case through both appellate courts upon the theory that he had a right to recover upon the case which he was prepared to and did present to the trial court. The Appellate Division might, upon a proper suggestion, have treated the case as one which should have been dismissed on the defendant's motion; but the plaintiff appears to have waived this point and to have proceeded upon a different theory, and with a final adjudication that he had no right of recovery upon the case which he offered to present, it is, in my opinion, too late for the court of original jurisdiction to wipe out the record on which that adjudication was made and substitute a different judgment. "They should not, after the final judgment, by amendment change a ruling upon the law, or alter the decision upon the merits, for, by so doing, the substantial

rights of the adverse party would be really affected." Bohlen v. M. E. R. Co., 121 N. Y. 546, 551, 24 N. E. 932, 933.

The case, as we have already suggested, was in a situation similar to that which would have prevailed had there been a judgment upon demurrer; there was a final adjudication of the question of law upon which the plaintiffs relied, and it is now too late to tamper with the judgment and make it something different from that which the appellate courts have made it. Hirshbach v. Ketchum, 79 App. Div. 561, 80 N. Y. Supp. 143; Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. 495, 28 L. Ed. 491; Pollak v. Dodge Manufacturing Co., 80 Misc. Rep. 182, 141 N. Y. Supp. 1104.

The order and judgment appealed from should be reversed, with

costs.

METROPOLITAN TRUST CO. OF CITY OF NEW YORK v. STALLO et al. (No. 6862.)

(Supreme Court, Appellate Division, First Department.

March 12, 1915.)

1. PLEADING 193-DEMURRER-MISJOINDER OF CAUSES OF ACTION.

Under Code Civ. Proc. § 488, subd. 7, declaring a complaint demurrable where causes of action have been improperly joined, it is not a ground of demurrer in equity that the complaint contains the material for more than one action.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 425, 428-435, 437-443; Dec. Dig. 193.]

2. ACTION 48-JOINDER-CONSISTENCY-PARTIES AFFECTED-STATUTE. Under Code Civ. Proc. § 484, subd. 9, permitting the uniting in one complaint of two or more causes of action upon claims arising out of the same transaction, or transactions connected with the same subject of action, and providing that the causes of action so united must be consistent with each other, and, except as otherwise prescribed by law, affect all the parties to the action, a trust company, individually and as administrator, might maintain an action for an accounting to determine, under complicated conditions and upon numerous conflicting claims, the amount for which it was chargeable to the estate, incidentally seeking the adjustment of some of the conflicting claims as a prerequisite to the determination of its chargeability, and before which adjustment it would be impossible for plaintiff to know of what the estate consisted, since the separate causes of action, if any, were not inconsistent, and since the main cause of action would affect all of the defendants in one way or another; it not being essential that they should all be affected alike, or that their pecuniary interests be the same, or that all be interested in the incidental relief obtained by the others.

[Ed. Note. For other cases, see Action, Cent. Dig. §§ 241-243; Dec. Dig. 48.]

3. PARTIES

14-PLAINTIFFS-MISJOINDER-STATUTE. Under Code Civ. Proc. § 446, providing that all persons having an interest in the subject of the action and in obtaining the judgment demanded may be joined as plaintiffs, no improper joinder of parties plaintiff arose out of the fact that plaintiff, in an action for an accounting to ascertain its chargeability to an estate, sued both in its individual capacity and as administrator of the estate; a sufficient reason for such joinder being that, while technically the title to the assets of the estate were vested in plaintiff as administrator, liability for such assets and for its acts as administrator would fall upon the plaintiff individually, so For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

that it was interested in both capacities, especially in view of the fact that, if the action had been brought by plaintiff solely as administrator, it would have itself been a proper party defendant in its individual capacity.

[Ed. Note. For other cases, see Parties, Cent. Dig. §§ 13, 16, 17; Dec. Dig. ~14.]

4. EXECUTORS AND ADMINISTRATORS 430-MANAGEMENT OF ESTATE-INDIVIDUAL LIABILITY.

The acts of an administrator in respect to the estate of which he is trustee, though proper in themselves, may result in his individual liability.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1683-1688; Dec. Dig. 430.]

Laughlin and McLaughlin, JJ., dissenting.

Appeal from Special Term, New York County.

Suit by the Metropolitan Trust Company of New York, individually and as administrator of the estate of Alexander McDonald, deceased, against Edmund K. Stallo and others, impleaded, etc. Demurrer to complaint by three defendants sustained, and plaintiff appeals. Order reversed, with leave to defendants respondents to withdraw demurrer and answer on payment of costs.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

John G. Milburn, of New York City (Walter F. Taylor, of New York City, on the brief), for appellant.

Rockwood & Haldane, of New York City (Nash Rockwood, of New York City, of counsel), for respondents.

SCOTT, J. The demurrer of three of the defendants has been sustained, on the grounds that there is a misjoinder of parties plaintiff and also a misjoinder of causes of action. The plaintiff, the Metropolitan Trust Company of the City of New York, sues both as an individual and as the administrator of the goods, chattels, and credits of Alexander McDonald, deceased. The condition of the estate of said McDonald, as disclosed by the complaint, is a very complicated one, and the professed purpose of the present action is to clear up and disentangle these complications, to determine the proper disposition of certain funds now in plaintiff's hands, to obtain an adjudication as to the sums for which it is justly chargeable, and to permit it to account therefor. The defendants embrace all persons who appear to have any claim to any portion of the estate. The following summary of the complaint (adopted from one of the briefs) fairly presents the questions upon which this appeal turns:

"Alexander McDonald died intestate in March, 1910, leaving as his only next of kin his granddaughters, Laura McDonald Stallo and Helen McDonald Stallo Murat, both of whom were then minors. Their father and general guardian was Edmund K. Stallo. Stallo was appointed administrator of the McDonald estate in October, 1910. The plaintiff, Metropolitan Trust Company, upon Stallo's petition, was appointed coadministrator with him. In December, 1910, Stallo's letters were revoked, leaving the Trust Company sole administrator. Stallo, while acting as administrator, filed an inventory, of which a copy is annexed to the complaint as Exhibit I, and after his removal filed a For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

report which is annexed to the complaint as Exhibit II. Both in the inventory and report Stallo claims that there was a partnership between himself and McDonald, and classifies as partnership assets securities valued by him at the sum of $2,447,472.60, and classifies as partnership indebtedness debts amounting to $2,685,719.28. Stallo, however, after the appointment of the plaintiff as administrator, did not in any way act as liquidator of the alleged partnership, or take any steps for the settlement of its affairs. The Trust Company did not know, and never has been able to ascertain, whether or not the partnership which Stallo claims to have existed, did in fact ever exist. It alleges, however, that for some years prior to McDonald's death he and Stallo were engaged in joint undertakings having to do with the construction of the Mobile, Jackson & Kansas City Railroad and the Gulf & Chicago Railway (afterwards reorganized into the New Orleans, Mobile & Chicago Railroad), and that some at least of the indebtedness which Stallo classes as partnership indebtedness was incurred for the purposes of such undertakings, and that many of the securities which he classes as partnership property were acquired in connection therewith.

"Several years before McDonald's death the Metropolitan Trust Company began lending money on notes of which McDonald and Stallo, or one of them, were makers or indorsers, and to secure which stock, bonds, etc., of the Mobile, Jackson & Kansas City Railroad Company and of the Gulf & Chicago Railway Company were pledged. When McDonald died, the Trust Company held a promissory note made by McDonald & Stallo (McDonald's name being signed by Stallo at attorney), dated December 8, 1909, for $2,700,000, payable 12 months from date. As collateral security for this note there were pledged 2,000 shares of the capital stock of the Standard Oil Company (New Jersey) and bonds and stock of the New Orleans, Mobile & Chicago Railroad Company. The 2,000 shares of Standard Oil Company stock were the individual property of Alexander McDonald. The Metropolitan Trust Company never has known what the respective interests of McDonald and Stallo in the railroad stocks and bonds were. In the summer and fall of 1911 the Trust Company, being then sole administrator of the McDonald estate, sold the Standard Oil stock and the railroad stocks and bonds. These sales produced enough to pay the amount due on the note held by the Trust Company and to leave a balance of $434,350.93. This amount is in the hands of the Trust Company.

"The New Orleans, Mobile & Chicago Railroad Company, which issued the railroad stocks and bonds pledged with the Trust Company as collateral for the $2,700,000 note, was the result of a reorganization perfected about December, 1909, of the Mobile, Jackson & Kansas City Railroad Company and of the Gulf & Chicago Railway Company. According to the plan of reorganization, the bonds of the new company were issued for bonds, notes, and other indebtedness of the old companies, dollar for dollar. The holders of the stock of the old companies had to pay a 20 per cent. assessment on their stock, and upon such payment became entitled to receive new common stock to the amount of the old stock held by them, bonds to the amount of the assessment, and preferred stock to the amount of 20 per cent. of the assessment. At the time of the reorganization, 10,000 shares of the stock of the old companies were owned or claimed by Gen. Brayton Ives. The assessment on this stock was $200,000, and this assessment was paid by McDonald and Stallo out of the proceeds of the $2,700,000 note, and on payment of this assessment there were issued in respect to the 10,000 shares of old stock 10,000 shares of common stock of the new company, 400 shares of its preferred stock, and $200,000 par value of its bonds. The stock of the new company so issued never came into the possession of the Trust Company. The bonds and preferred stock were retained by Ives as his own property, but on or about February, 1912, he delivered said bonds and preferred stock and also $20,000 (the amount of coupons collected by him on the bonds) to the attorneys of the Trust Company for and on its behalf as if deposited with it, as additional security for the loan made by it to McDonald and Stallo, and the loan having been paid, to be held by it for whosoever might be entitled thereto, and in June, 1913, he sent a communication to the Trust Company stating that he had decided to relinquish any and all claims to said bonds,

preferred stock, and moneys. These bonds, shares of preferred stock, and moneys are now in the hands of the Trust Company.

"In March, 1913, the defendant Edward V. Harmon, claiming to be a judgment creditor of the Alabama Securities Company, brought an action against the Alabama Securities Company, Metropolitan Trust Company, individually and as administrator, Edmund K. Stallo, and others, and also other actions against the Trust Company as administrator. The defendant Charles E. Levy also brought an action against the same parties. The facts which formed the basis for these actions are as follows: In December, 1908-that is to say, about a year before the $2,700,000 note was given-McDonald and Stallo and one William D. Stratton made and delivered to the Trust Company a promissory note for $2,250,000, and pledged as collateral therefor various stocks, bonds, etc., of the two old companies. Part of this note had been paid and part of the collateral therefor had been surrendered before the $2,700,000 note was given in December, 1909. The balance due was paid by McDonald and Stallo out of the proceeds of the latter note, and there was also paid out of said proceeds the assessment payable under the plan of reorganization on the securities of the old roads, that had been held up to that time as collateral for the $2,250,000 note. The securities of the new road issued pursuant to the plan of reorganization in respect to these securities of the old roads, were the railroad securities which formed a part of the collateral for the $2,700,000 note.

"Edward V. Harmon and Charles E. Levy, in the actions brought by them, claim that all or part of the securities of the old roads pledged as security for the $2,250,000 note were owned by the defendant the Alabama Securities Company, or that it had an interest therein, and that the Metropolitan Trust Company, individually and also as administrator, Stallo, and others, are bound to account for such securities or for the proceeds thereof.

"McDonald, prior to December, 1909, had advanced very large amounts of money to the Alabama Securities Company, and that company had either transferred to McDonald and Stallo whatever rights it had in the securities of the old companies pledged as collateral for the $2,250,000 note, or had fully authorized the action taken by Stallo and McDonald in reference to those securities. The Trust Company has never had any knowledge as to what, if any, was the actual interest of the Alabama Securities Company in the securities of the old companies, or what, if any, interest it had in the securities of the new company pledged to secure the $2,700,000 note. The securities of the new company were all sold by the Trust Company before either the Harmon or the Levy actions were commenced, and any interest which the Alabama Securities Company may have had in such securities is confined to the balance of the proceeds of the sale by the Trust Company of the collateral for the $2,700,000 note. This balance is the sum of $434,250.93, referred to above, and is now held by the Trust Company subject to the determination of the question of the ownership thereof and the interests therein. "Claims have been filed against the estate of Alexander McDonald on various notes secured by collateral claimed by Stallo to be partnership assets, or claimed by him to be his individual property, but some of which prima facie are the property of the Alabama Securities Company. The Trust Company, as administrator, has had to pay a number of such claims, and has in its possession a large amount of securities which were held as collateral by the claimants, and it does not know and never has been able to ascertain what the respective interests of the McDonald estate, Edmund K. Stallo, and the Alabama Securities Company are therein. It has also received and now holds other securities which are claimed by Stallo as his own property, or to be partnership assets. A great number of claims have been filed against the estate, based on obligations for which Stallo was either primarily liable or jointly liable with McDonald. Some of these claims are still pending. Some, as above stated, have been paid, and the collateral therefor has been received by the Trust Company. The Trust Company, as administrator, has some interest in these securities, but has never been able to ascertain the extent of such interest.

"The complaint, after setting forth the facts above summarized, proceeds: *(37) Without an accounting to be had herein with respect to the matters hereinabove set forth, and a determination with respect to the assets that