70 N.Y.S. 963 | N.Y. App. Div. | 1901
If the learned judge at Special Term was right in his reading of the complaint, that it therein appeared that there were two causes of
Here, as alleged, the administration of an estate was confided to the defendant as executrix, and in the course of such administration, under representations as to the condition, of the estate, she secured an advantage to herself individually by means of a mortgage, which transaction, in order that complete relief may be obtained on the accounting, it is necessary to have investigated. In addition to this transaction there might have been many more ; and it would be a perversion in terms to assert that, with respect to the remedy or relief to be afforded as to each of these transactions up<"u an accounting, the complaint should be regarded as setting forth so many causes of action.
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 to 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 joinder of parties or of causes of action. This view finds support in the case of Garner v. Harmony Mills (6 Abb. N. C. 212), wherein it was said, “ the one subject-matter of the action is the trust, and the cause of action, the several violations and misappropriations of which it has been the subject. The object of the suit is a legitimate one, and peculiarly appeals to a court of equity to accomplish its purpose. * * * Jt is clear that the plaintiffs are entitled to the protection and relief of the court. The only ■question here is whether they must seek it by separate suits against •each of the individuals implicated in the transactions or whether they are at liberty to bring them all into court in one suit. The complaint. recites but one connected history of this trust fund. * * * The question is whether the several matters charged are so distinct and unconnected as to-render the joining of them in one bill a ground of" demurrer. * * * The objection is based upon the fallacy of
This complaint affords a striking illustration of what would be the result were the rule otherwise. Here it is alleged that the executrix and trustee in the administration of the estate induced the plaintiff to mortgage his interest therein upon a false representation as to the condition of such estaté and the necessity of securing her if the estate was to be preserved. This representation consisted of the statement that the income was insufficient to pay the debts and charges existing and which the defendant was herself willing to assume and pay, provided that the plaintiff, to the extent of such advances, would secure her by a mortgage in the amount specified, which mortgage the plaintiff gave. If in a separate action he had undertaken to have the mortgage set aside as fraudulent, the determination of that question would necessarily involve an accounting
We think with but an amplification, which is justified by the character of the relief sought, that what the plaintiff here seeks to obtain is not an accounting which shall afford relief with respect to the mortgage transaction alone, but which will cover the entire trust period during which the defendant has managed the estate ; and that among the other relief sought is the setting aside of so much of the benefits of the mortgage obtained as the defendant is not justly, or equitably entitled to have. As we read the complaint, it is simply one for an accounting ; and if every transaction arising in connect tion with the administration of the estate for which the accounting is asked is to be regarded as a separate cause of action, then it would be difficult, if not impossible, to ever maintain such an action in equity because it would always happen with regard to the transactions themselves that some would partake of the nature of contract and others of the nature of tort.
The controlling idea in the court below seems to have been the separate identity of the defendant as an individual and as trustee ; but although this is legally true, it is not a reason for concluding that two causes of action are stated against the defendant in different capacities, because what is sought is not to maintain against her a separate action in each capacity, but a single action in whicli relief shall be accorded against her in both capacities. Were we to assume that, instead of having the mortgage made to herself she had, in collusion with another, fraudulently obtained the mortgage, would it not have been entirely proper in an action for an accounting Wherein the subject of the giving and of the validity of the mortgage would be involved, to vouch in the mortgagee in the accounting action, to the end that the plaintiff might obtain complete
Having reached the conclusion that there is but one cause of action stated, and that for an accounting, it follows that the demurrer which is based upon the theory that there are two or more causes of action stated, is bad, and the interlocutory judgment should, accordingly, be reversed, with costs, and the demurrer overruled, with costs, but with leave to the defendant to answer over on payment of costs in this court and the court below.
Ingraham, McLaughlin, Hatch and Laughlin, JJ., concurred.
Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to answer over on payment of costs in this court and in the court below.