96 N.Y.S. 356 | N.Y. App. Div. | 1905
„ The defendants, individually and as committed of creditors of the Archer and: Pancoast Company, a corporation, demurred to the complaint. The demurrers were overruled, and they have appealed. They urge upon the appeal that the -demurrers should have been sustained (1) because the complaint does not state facts sufficient to constitute a cause of' action'; (2) because there is a defect of parties defendant,, in that.neither the Archer and Pancoast Company ¡mor the Archer-Pancoast Company is joined.; and (3) for the reason that causes of action have been improperly united, viz., a cause of action against them individually and one against them as a committee of the creditors of the Archer and Pancoast Company. .
The action is. in equity for an accounting. The complaint alleges in substance that on or about" the 14th of Hovember, 1898, the plain-. tiff was .the owner and holder of thirty-five certain■ promissory notes in writing made by the Archer and Pancoast Company, which amounted in the . aggregate, to $17,500;-that -on said day certain
The complaint further charges that subsequent to the report referred to, and on or about the 21st of February, 1900, the defend
‘ The judgment demanded is that an accounting be had between plaintiff-and defendants of their actions and proceedings as trustees, and that upon the completion of said accounting they and each- of them be decreed to pay over to' the plaintiff .such stim as shall be-ascertained to be due to it from them. , ’ •
The appellants contend that the complaint upon -its face shows that the plaintiff is not entitled to the relief demanded; -that defendants’ letters- and reports referred to in and nmde a part of the complaint" are, in effect, an accounting. In other words, that ."the letters, and reports show that the plaintiff has already had an accounting, and for that reason sufficient facts aré not stated t.o justify the court in exercising its equitable powers in plaintiff’s behalf. I am unable, after a careful consideration of the allegations of the complaint,'to agree with the appellants’ contention. The plaintiff does not admit-the truth of the statements contained in defendants’ letters and reports-because it has-annexed them to and made them a part of the complaint. They are set forth for the purpose of- showing the relation that existed between the parties, and- which entitles the plaim tiff to the relief asked; that the defendants, in accepting the plaintiff’s money, did so as .its agent,or trustee for a specific purpose, which was the acquisition of certain property for the benefit of; creditors of the Archer and Pancoast Company. These- reports' and letters, taken iii connection with the allegations of the complaint, show that a fiduciary relation existed between the parties, by reason
Nor is there a defect of parties defendant. Neither of the corporations mentioned' is a necessary party. As to the Archer and Pan-coast Company, the old corporation, there is no claim made either for or against it,' nor is -there any claim made for or against any of its officers or directors. So far as appears from the complaint, neither the plaintiff nor the defendants had any official connection with that corporation, nor, indeed, any relation other than as creditors of it. As to the new corporation, the Archer-Pancoast Company, there are no allegations in the complaint that such a corporation existed, except so far as that may be inferred from statements made by the defendants in the letters and reports annexed to the complaint. But even if its existence be admitted, it is not a necessary party, inasmuch as the complaint does not seek to obtain an accounting from it or to make it liable in any respect, nor is there any claim made that the defendants, as trustees, transferred to it the property which they held in trust; but the title to the property transferred is not- questioned, nor are any facts stated which would warrant any relief against it. (Zebley v. Farmers' Loan & Trust Co., 139 N. Y. 461, 471.) The only relief asked is that the defendants account for moneys which they received from the plaintiff.
It is also said that causes of action have been improperly united, in that a cause, of action is alleged against defendants as trustees of the creditors of the Archer and Pancoast Company, and also a cause of action alleged against them as individuals. There is but one cause of action alleged, and that is to compel defendants to account for money which they received, not from the creditors of the Archer and Pancoast Company, but from the plaintiff. The cause of action alleged does not relate to the fund collected by defendants, but simply to the money paid by the plaintiff. Plaintiff wants the defendants to account for that money, and the complaint is not demurrable because it asks for such relief against the defendants personally and as its trustees. (Donnelly v. Lambert, 62 App. Div. 190.)
O’Bbieb, P. J., Ibgfraham, Lattgueib. and Houghtob; JJ., concurred'.
Judgment affirmed, with costs*, with-leave, to-defendants- to withdraw demurrers- and ta- answer on. payment of costa- in. this- court and in the court, below-