페이지 이미지
PDF
ePub
[merged small][ocr errors][merged small][merged small][merged small]

have come into the possession of the plaintiff, and an ascertainment as to which of said assets are the property of the estate of Alexander McDonald, and which thereof are the property of said estate jointly with others, and the interest therein of said estate, and what, if any, interest the defendant Stallo or the defendant Alabama Securities Company has therein or in any thereof, and a marshaling of the individual and joint liabilities of said McDonald and Stallo and of their individual and joint assets, and a determination of the confiicting claims in respect to the bonds and preferred stock of the New Orleans, Mobile & Chicago Railroad Company and the interest heretofore collected on the same now held by the plaintiff's attorneys for and on its behalf, as alleged in the foregoing paragraph 27 hereof, and a determination as to the amount of the assets of the estate of the said Alexander McDonald, the plaintiff is unable to determine what portion of the moneys, assets, and other property in its hands belong to the estate of Alexander McDonald, and what portion belongs to others, if any, or to render an account to the Surrogate's Court as such administrator of its acts, transactions, receipts, and disbursements, to the end that it may be settled and allowed, or to have the amount of the transfer tax upon said estate determined and paid, or to pay over and deliver to others any portion of said moneys, property, or other assets to which they may be entitled.

"(38) By reason of the premises, and of the matters and things hereinbefore set forth, the Surrogate's Court of the County of New York is without the power and jurisdiction to determine the matters involved in this action and to do full and complete justice between the parties hereto.'

"The Trust Company demands judgment: (1) That it be ascertained and determined what the interests of the estate of Alexander McDonald and of the defendant Edmund K, Stallo and of the Alabama Securities Company, respectively, are in the net proceeds of the collateral for the $2,700,000 note, and in the stocks, bonds, and securities which have come into the Trust Company's possession; (2) that Edmund K. Stallo be required to account in respect to all of the transactions in which he and McDonald participated ; (3) that with respect to the $200,000 of bonds (including the interest thereon), and the preferred stock above referred to, the interest therein of the estate of Alexander McDonald, and of Stallo and of the Alabama Securities Company, be ascertained and determined, and also their respective liabilities on account thereof; (4) that it be adjudged and determined that the collateral pledged with the Trust Company to secure the $2,250,000 note and the $2,700,000 note was so pledged with the consent of the Alabama Securities Company; (5) that it be adjudged and determined that plaintiff may account herein for its acts, proceedings, receipts, and disbursements as administrator of the estate of Alexander McDonald, to the end that it may be ascertained and determined for what amount and for what property and assets plaintiff is chargeable as such administrator, and its accounts settled and allowed ; (6) that it be adjudged and determined what disposition shall be made of the property and assets found in its hands, and that plaintiff be discharged from liability to the parties, or any of them, on account of the transactions set forth ; (7) that each of the defendants be enjoined from maintaining suits against the plaintiff, either in its individual capacity or as administrator, concerning any of the matters and things set forth in the complaint.”

[1,2] While it may be that it would be possible to find in this complaint the material for more than one action, this is by no means uncommon in actions in equity, nor is it a ground of demurrer. It is only when causes of action are improperly united that a complaint is obnoxious to demurrer. Code Civ. Proc. $ 488, subd. 7. Primarily and mainly this is an action for an accounting to determine, under very complicated conditions and in the face of very numerous conflicting claims, with just what the plaintiff is chargeable to the estate of McDonald. Incidentally it is sought to procure the adjustment of some of the conflicting claims to which we have referred, and indeed

[merged small][ocr errors][merged small][merged small][ocr errors][merged small][merged small][merged small]

152 N.Y.S.-12

ters that

[ocr errors][merged small][merged small][merged small]

such an adjustment is a necessary incident and prerequisite to the determination of the primary question sought to be determined. Until all these incidental questions are answered, and the claims of persons not directly interested in the estate to the moneys and securities apparently constituting a part of the estate are adjusted and determined, it will be impossible for plaintiff or any one else to know precisely of what the estate consists. Similar complaints have frequently been upheld. It has been considered that they fall within subdivision 9 of section 484 of the Code of Civil Procedure, which permits 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 not included within one of the foregoing subdivisions of this section.” It is true that this provision is qualified by the further provision in the same section that the causes of action so united must be consistent with each other, and, except as otherwise prescribed by law, that they affect all the parties to the action.

The separate causes of action, if there be such, which the respondents insist are to be found in the complaint, are certainly not inconsistent, and it is also certain that the primary and predominant cause of action stated by the complaint, as well as the judgment sought, will affect all of the defendants in one way or another. It is not essential in equity that they shall all be affected alike. People v. Equitable Life Assurance Society, 124 App. Div. 727, 109 N. Y. Supp. 453. The main object of the action, as has been said, is to ascertain and have judicially determined just what constitutes the assets of the estate for which plaintiff is accountable. Clearly the next of kin are vitally interested in this question, and are proper and even necessary parties. Equally clearly the other defendants are also interested, for they all claim some right or interest in the apparent assets.

“The fact that their pecuniary interests may not be the same, or that some may not be interested in the incidental relief obtained by others, does not prevent all being interested in the subject of the action and in obtaining the judgment demanded.” Mullin v. Mullin, 119 App. Div. 521, 104 N. Y. Supp. 323; Simar v. Canady, 53 N. Y. 298, 13 Am. Rep. 523; Shepard v. Manhattan Ry. Co., 117 N. Y. 442, 23 N. E, 30.

"It is proper, in a suit in equity for an accounting, to bring in all the parties to be affected thereby, and to set forth such facts germane to the accounting as will give the plaintiff in such an action adequate and complete relief; and a complaint which includes such parties and transactions is not open to demurrer upon the ground of improper rejoinder of parties or causes of action." Donnelly v. Lambert, 62 App. Div. 189, 70 N. Y. Supp. 963.

[merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][ocr errors][ocr errors][ocr errors]

[3,4] Nor do we find any improper joinder of parties plaintiff or of causes of action arising out of the fact that the plaintiff sues both in its individual capacity and as administrator of the McDonald estate. Such a joinder has been frequently upheld. Donnelly v. Lambert, supra; Shuttleworth v. Winter, 55 N. Y. 624; Bushe v. Wright, 118 App. Div. 320, 103 N. Y. Supp. 410. A sufficient reason for such a joinder is that, while technically the title to the assets of the estate are vested in plaintiff as administrator, the liability for such assets and the responsibility for the acts of the administrator will fall upon the

[merged small][ocr errors]
[ocr errors]

plaintiff individually; for, as was said in Newcombe v. Lottimer, 12 N. Y. Supp. 381,- affirmed 128 N. Y. 618, 28 N. E. 254:

“It is well settled that the acts of executors in respect to the estate of which they are the trustees, which acts may be proper in themselves, may result in an individual liability of such executors, and that in the course of the administration of an estate the acts done by an executor are his individual acts, for which he is individually responsible, although the acts done may relate to the business of the estate."

[merged small][ocr errors][ocr errors][ocr errors][merged small][ocr errors][merged small][ocr errors]

It is of course evident, and as we understand not disputed, that if this action had been begun by plaintiff solely in its representative capacity, it would have been a proper party defendant in its individual capacity. Is it necessary to transplant the plaintiff individually from its position as plaintiff to a position with the defendants? The Code of Civil Procedure does not require that the parties joined as plaintiffs shall have a common or identical interest in the cause of action. The requirement is that:

"All persons having an interest in the subject of the action and in obtaining the judgment demanded may be joined as plaintiffs, except as otherwise expressly provided in this act." Section 446.

It is quite obvious that in an action for an accounting, in which the object is to ascertain and fix the amount for which the executor or administrator is liable, he has an interest in the subject of the action both individually and in his personal capacity, and in both capacities he is interested in obtaining the judgment demanded. For this reason it is quite common for an executor or administrator to sue in both capacities. Such a joinder puts any defendant who wishes to assert a claim against the administrator in either capacity at no disadvantage. For these reasons, we are of the opinion that the demurrer should have been overruled.

The order appealed from will therefore be reversed, with $10 costs and disbursements, and plaintiff's motion to overrule the demurrer and for judgment upon the pleadings granted, with $10 costs, with leave to defendants to withdraw their demurrer and answer over upon the payment of said costs within 20 days.

Th Eve it ate fo:

[merged small][ocr errors][merged small][ocr errors][merged small]

INGRAHAM, P. J., and CLARKE, J., concur.

LAUGHLIN, J. (dissenting). The respondent Edmund K. Stallo, who according to the allegations of the complaint claims an interest in moneys and securities in the hands of the Metropolitan Trust Company and was engaged in various joint enterprises or copartership undertakings with the decedent, concerning which there has been no accounting and with respect to which an accounting is demanded in this action, and the respondents Laura McDonald Stallo and Helena McDonald Stallo, who are the sole next of kin of Alexander McDonald, deceased, jointly demurred to the complaint on the grounds that there is a misjoinder of parties plaintiff and that causes of ac

3 of

atiff ch

es boti estate

imber ht, Ils

such a ate are

its and on the

1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 58 Hun, 609.

[merged small][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors]

tion have been improperly united, and on the further ground that the complaint fails to state facts sufficient to constitute a cause of action, either in favor of the Trust Company in its individual or in its representative capacity. There was no decision at Special Term on the demurrer on the ground of insufficiency of the allegations of the complaint, and therefore the questions presented by the grounds of demurrer relating thereto are not presented for review.

I am unable to agree with the views expressed in the majority opinion with respect to either of the two grounds of demurrer therein considered. It appears by the allegations of the complaint that at the time the plaintiff was appointed administrator it owned and was in possession of a promissory note made by the respondent Edmund K. Stallo and by the decedent, by said Stallo as his attorney in fact, dated December 8, 1909, payable on December 8, 1910, for $2,700,000, and held as security therefor $2,138,000 first mortgage bonds of the New Orleans, Mobile & Chicago Railroad Company, $240,000 preferred stock of said company, $1,950,000 common stock of said company, $155.26 bond scrip of said company, $116.10 preferred stock scrip of said company, $68 common stock scrip of said company, and $200,000 par value, of the capital stock of the Standard Oil Company of New Jersey, and that after its appointment as administrator, and while it was the holder and owner of said note, commencing with the summer of 1911, it sold from time to time all of said securities, and that it applied the proceeds of such sales to the payment of said note, and holds a surplus of $454,250.93 in its individual capacity. It is also alleged that on or about the 2d of February, 1912, defendant Brayton Ives delivered to the attorneys for the Trust Company $200,000, par value, of bonds and 400 shares of preferred stock of the New Orleans, Mobile & Chicago Railroad Company, and $20,000 in cash, which he claimed to own, for and on behalf of the Trust Company "as if deposited with it as additional security" for said note, and the note at that time having been paid, "to be held by it for whomever might be entitled thereto.” It is further alleged in substance that in selling said securities the Trust Company acted within its rights as pledgee thereof, and received the best obtainable therefor, and judgment to that effect is demanded. The complaint does not disclose the existence of any controversy between the plaintiff as such pledgee and as administrator with respect to these matters, but proceeds upon the theory that the plaintiff in its capacity as administrator approves of all its acts as such pledgee. It is also alleged, however, that the defendants Harman and Levy claim an interest in the right of defendant Securities Company in the securities so held by the plaintiff as pledgee; that the plaintiff, as administrator, defendant Edmund K. Stallo, and defendant Securities Company make claims to said surplus remaining on said sale of the securities so held by plaintiff as pledgee after the payment of said note; that plaintiff, as administrator, said Stallo, and defendant Ives each claim the securities and cash delivered by said Ives to the attorneys for the Trust Company as stated; that the plaintiff is unable to determine the merits of these conflicting claims without jeopardy to its own interests; and

[ocr errors][merged small][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small]
[merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small]

judgment is further demanded determining the respective claims and interests of said claimants, if any, in and to said funds and securities.

It may be conceded for the purposes of deciding this appeal that the Trust Company, as pledgee, sufficiently shows a cause of action for the relief demanded to the extent stated. It is manifest, however, that there is here stated no cause of action in favor of the Trust Company as administrator, but, on the contrary, a cause of action in favor of the Trust Company as pledgee against the administrator and others. The complaint further shows certain joint ventures or copartnership undertakings on the part of the decedent and Edmund K. Stallo, with respect to which there has been no accounting, and judgment for such an accounting is further demanded; and it is further alleged that certain bonds, stocks, and other securities, which were pledged as collateral security for notes which the administrator has paid, have come into the hands of the administrator, and are now held by it, and that it has received and now holds other stocks and securities; that Edmund K. Stallo asserts a claim individually to some of these securities, and asserts that others of them belong to the copartnership between him and the decedent; and that some of them were pledged as security for notes of which the defendant Securities Company and others were either makers or indorsers with the decedent and said Stallo, and the plaintiff does not know what interest, if any, Stallo, or the copartnership, have in these securities, or whether the defendant Securities Company has any interest therein; but it is not alleged that the Securities Company has asserted any claim thereto. Judgment is likewise demanded, determining the rights and interests of said Stallo individually, and of the copartnership, and of the Securities Company with respect to these matters.

It is likewise manifest that the facts alleged with respect to these matters do not show a cause of action in favor of the Trust Company, or one in which it is interested, in its individual capacity, but rather two, one for the copartnership accounting, and another to determine conflicting claims to the stocks and securities, both in its favor as administrator, in which it individually has no interest. It therefore seems to me quite clear that there is both a misjoinder of parties plaintiff (see Doyle v. Carney, 190 N. Y. 386, 83 N. E. 37; Case v. N. Y. Mut. Sav. & Loan Ass'n, 88 App. Div. 538, 85 N. Y. Supp. 104; Hart v. Goadby, 138 App. Div. 160, 123 N. Y. Supp. 166; Groh v. Flammer, 89 App. Div. 28, 85 N. Y. Supp. 305; Lawrence v. McKelvey, 80 App. Div. 514, 81 N. Y. Supp. 129; Havana City Ry. Co. v. Ceballos, 49 App. Div. 263, 63 N. Y. Supp. 417; see, also, Arkenburgh v. Wiggins, 13 App. Div. 96, 43 N. Y. Supp. 294, affirmed 162 N. Y. 596, 57 N. E. 1103; Hubbell et al. v. Lerch, 58 N. Y. 237) and a misjoinder of causes of action (see Case v. N. Y. Mut. Sav. & Loan Ass'n, supra; Hart v. Goadby, supra; Johnson v. Phoenix Bridge Co., 197 N. Y. 316, 90 N. E. 953; O'Connor v. Va. Passenger & Power Co., 184 N. Y. 46, 76 N. E. 1082; Cass v. Realty Securities Co., 148 App. Div. 96, 148 App. Div. 1074, affirmed 206 N. Y. 649, 99 N. E. 1105). If McDonald were living, plainly he could not have joined these causes of action, and therefore the cases

[ocr errors][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small]
« 이전계속 »