182 N.Y. 431 | NY | 1905
Lead Opinion
The cause of action as alleged in the complaint was that Pierce, as trustee, be compelled to render an account of the trust funds in his hands; that he be enjoined from making improper investments, and that he be compelled to make restitution of such of the trust funds as had been lost through his fault. In the summons and in the title of the complaint he is named only in his individual capacity, and it is conceded that no cause of action is alleged against him in that capacity. The demurrer is "that there is a defect of parties, in that Carlton B. Pierce as trustee under the will of Abijah Barnum, deceased, is a necessary defendant," and again, "that the complaint does not state facts sufficient to constitute a cause of action."
It has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued. If the judgment was for or against an executor, administrator, assignee or trustee, it would not preclude him, in an action affecting him personally, from disputing the findings or judgment, although the same questions are involved. (Collins v. Hydorn,
The defendant Pierce, individually, being in contemplation of law a distinct party from that of Pierce as trustee under the will of Barnum, deceased, I think adopted the correct *433 practice to relieve himself from liability personally by interposing the demurrer to the complaint. The Code of Civil Procedure provides that an action is commenced by the service of a summons; that the summons must contain the title of the action, specifying the names of the parties to the action. (Secs. 416, 417.) It further provides that the defendant may demur when there is defect of parties plaintiff or defendant, and when the complaint does not state facts sufficient to constitute a cause of action. (Sec. 488.) It thus appears that the action was commenced by the service of the summons in which the defendant was named as a party individually, and that no cause of action was stated in the complaint against him in that capacity. The defendant, therefore, brings himself squarely within the express provisions of the Code in interposing his demurrer. This practice imposes no unjust hardship upon the plaintiff. He is only called upon to determine the nature of his own cause of action, as to whether it is against the person in his individual capacity, or in his representative capacity.
It is true that there are cases in which it has been said that the title and pleadings may be considered together to ascertain the true nature of the action, and the cases of Stilwell v.Carpenter (
It will readily be seen that none of these cases reach the question involved in this case. All of these cases were considered in the case of First National Bank v. Shuler
(
The defendant Pierce may be liable as trustee, but is not liable individually. But if he is not permitted to interpose a demurrer how can he shield himself from the entry of a judgment against him personally. Must he appear and serve an answer? If so, what is he to answer? He may not be able to truthfully deny the allegations against him as trustee, and no facts have been alleged against him individually which call for an answer. But assuming that he may answer and go to trial and upon the trial procure a ruling to the effect that he is not liable personally, it would be the adoption of a cumbersome *436 and expensive practice, reaching a result in a round-about way when the Code authorizes a simple remedy by demurrer.
The judgment of the Appellate Division should be affirmed, with costs.
Dissenting Opinion
After many vicissitudes, in the course of which there have been several demurrers, amended complaints and a severance of inconsistent causes of action, the complaint in its present form has reached this court upon a demurrer that was overruled at Special Term, but sustained at the Appellate Division. Of the five specifications in the demurrer only two need be noticed, and they are (1) that there is a defect of parties in that persons described in paragraph five of the complaint as "other devisees therein named" are necessary defendants in the action, and (2) that there is a defect of parties defendant in that Carlton B. Pierce as trustee under the will of Abijah Barnum, deceased, is a necessary defendant.
The plaintiff is receiver under several judgments recovered against one Curtis A. Barnum. The latter is the contingent remainderman under his father's will, subject to his mother's life estate, of certain premises in Otsego county, which have been sold. The proceeds of the sale are now in the hands of the defendant Pierce as trustee under that will, who pays the income to the life tenant. This action is brought to compel the trustee to render an account; to enjoin him from continuing or making unauthorized investments of the trust fund, and to make restitution of such part thereof as may have been lost through his fault. All this is upon the theory, of course, that the receiver has a present qualified interest in the trust estate that may ripen into an unqualified title and right of possession upon the death of the cestui que vie. That portion of the complaint which sets forth the interest of the judgment debtor in the estate of his deceased father is to the effect that a certain house and premises in Otsego county were devised to the judgment debtor in fee simple, subject to the life use *437 of his mother, Laura Barnum. This devise was subject to the further contingency that, if the judgment debtor and all of his descendants should die before his mother, the property devised to him should pass to other devisees named in the will. One of the questions now to be decided is, whether these "other devisees" are necessary parties to this action.
It is to be observed that this complaint is not singular in that it prays for several forms of relief which are not justified by its allegations. That is a common fault in equity pleading. It contains one statement, however, that qualifies all its allegations and limits the relief sought. In the seventeenth paragraph the pleader says that "no relief is prayed for * * * which shall affect the custody of said fund or the income thereof, during the continuance of the trust estate. This allegation practically eliminates the prayer that the accounts of the trustee be judicially settled, as well as every other that is inconsistent with the main purpose of the action; and when the complaint is viewed in that light it is evident that what the plaintiff really wants is to have the trust fund accounted for and properly invested under the direction of the court. The present custody of the fund is not sought to be disturbed, and no direction is prayed for concerning its ultimate disposition. In short, the complaint fairly construed seeks nothing more than an intermediate or interlocutory accounting respecting a fund in which the plaintiff has now a contingent interest and in which the "other devisees" mentioned can have no interest, unless the interest of the plaintiff is annihilated by the death of the judgment debtor and his descendants pending the continuance of the trust estate. A decree directing the trustee to disclose his proceedings and restricting his investments to legitimate channels, cannot detrimentally affect the interests of these "other devisees," and it is, therefore, not apparent that they are necessary parties to this action. They may be proper parties, and, if so, the Supreme Court may, in its discretion, direct them to be brought in. But that result is not to be accomplished by demurrer. "Necessary parties, when the term is accurately *438
used, are those without whom no decree at all can be effectively made determining the principal issues in the cause. Proper
parties are those without whom a substantial decree may be made, but not a decree which shall completely settle all the questions which may be involved in the controversy, and conclude all the persons who have any interest in the subject-matter of the litigation." (Pomeroy's Remedies and Remedial Rights, § 329.) "If the person is a necessary defendant, a demurrer for defect of parties on account of his non-joinder will be sustained; and conversely, if the demurrer will be sustained, the person is a necessary party. If the person is merely a proper party, such a demurrer will not be sustained on account of his non-joinder, although the court may undoubtedly, in the exercise of its discretion, order him to be brought in." (Id. § 330.) In determining who are necessary parties and who are merelyproper parties to an action for an accounting, it should be borne in mind that there is a well-recognized distinction between the rendering of an account and its final settlement. (Woerner's Am. Law of Administration [2d ed.], vol. 2, §§ 501, 502;Remington v. Walker, 21 Hun, 322; Westervelt v. Gregg, 1 Barb. Ch. 469.) This distinction was applied in Wood v. Brown
(
The cases of Riggs v. Cragg (
The substance of the second ground of demurrer is that the defendant Pierce is named only in his individual capacity, while the only cause of action alleged is against him as trustee. It is true that in the title he is named without any officiodesignata, and that the complaint does not allege any cause of action against him as an individual; but it is equally true that it contains an undoubted cause of action against him as trustee, and no other. We think that the case falls within the rule laid down in Stilwell v. Carpenter (
It is suggested, however, that if the practice pursued by plaintiff herein is sustained, a judgment by default may be entered against a defendant in one capacity while he may regard himself as having been sued in another. That is one of the possibilities of such a situation. But similar dangers are incurred by every defendant who fails to appear when he is sued. In every such case a plaintiff may obtain greater or different relief than he may be entitled to, but that does not make the complaint demurrable. If it should be held, for instance, that this complaint does not state a cause of action against the defendant Pierce as an individual, and the title of the action should then be amended so as to conform to the allegations of the complaint, a personal judgment might still be rendered against him if he failed to appear. Of course, the plaintiff would have no legal right to such a judgment, but the mere fact that it was physically possible for him to obtain it would not render the complaint demurrable. We think the complaint clearly and unmistakably shows that the defendant Pierce is sued in his capacity of trustee and no other. Therefore, the mere omission to designate him as *442 trustee in the title to the action is not such a defect of pleading as to render the complaint bad on demurrer.
We shall not discuss at length the respondent's contention that the appeal should be dismissed in accordance with the practice indorsed by a majority of this court in Abbey v. Wheeler
(
For these reasons I dissent from the judgment about to be rendered and advise that the judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs to the appellant in all the courts.
CULLEN, Ch. J., GRAY and VANN, JJ., concur with HAIGHT, J.; BARTLETT, J., concurs with WERNER, J.; O'BRIEN, J., not voting.
Judgment affirmed.