Armstrong v. Hall

17 How. Pr. 76 | N.Y. Sup. Ct. | 1857

0.1. Allejst, Justice.

I do not perceive, as was contended on the argument, that there is any breach assigned under that part of the lease relating to the thirty acre lot. The breaches seem to be wholly confined to that part which demises the lot of 135 acres. The plaintiff claims that defendant has not paid the rent for the last two years, which accrued, after the deatlj. of the testator, and which she must be entitled to recover if at all, as devisee of the premises and not as executrix, as in the latter capacity, she could only be entitled to recover for rent due up to the time of the testator’s death.

She also claims to recover for breach of the covenants for repair, and for not returning the cattle. This claim she must sustain if at all as executrix. The question then is, whether she can unite the two causes of action in one suit and in the same count?

It has been correctly remarked, in my judgment, “ that the equitable interest is with very few and slight exceptions, ' the grand criterion as to who are or are not the necessary or proper parties to a proceeding of whatever nature.” (1 Whit. 58; note to Voorhies' Code, 1857, §§ 111, 112, 117.) And the rule in chancery always was, that every person interested in the event of a suit, or necessary to the relief sought, must be made a party. (9 Cow. 537; 2 Paige, 278.)

By the Code, section 167, the plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, when they all arise out of the same transaction, or transactions connected with the same subject of action, provided they affect all the" parties to the action and are separately stated. The object of the Code seems to have been to avoid a multiplicity of actions, and to effect if possible, between the same parties in one action, an end of the controversy. The testator, if living, could not recover but in one action, and by section 111, every action must be brought in the name of the party in interest. The devisees and legatees are the real parties under a will in an action brought by the'executors; but by section 119, the executor or administrator or trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him, the person for whose benefit the action is prosecuted.

This section leaves section 111 in force, as was the object of the commissioners of the Code, when they declared that they intended to require in the same action all parties necessary to make an end to the controversy. (See their notes) Here the defendant ought not to complain that the plaintiff has commenced but one suit against him, when she ought to have commenced two. She unites the right of E. A. as executrix with the right of E. A. as devisee, both rights accruing under a contract made by the testator with the defendant, and growing out of the same matter.

She has a common interest as executrix and devisee in the subject matter of the action, and this would be good ground for joining in a court of equity. (1 Paige, 20; 12 Barb. 28.) It is proper to say that the case cited by defendant’s counsel of Pugsley agt. Allen, (14 Barb. 116,) was reversed by court of appeals. (1st Kernan, 494.)

" I think the demurrer is not well taken, and there must be judgment for the plaintiff, with leave for defendant to answer on payment of $22 costs. Order accordingly.