66 Barb. 357 | N.Y. Sup. Ct. | 1873
By the Court,
This is a suit in equity instituted by Moses Petree as surviving executor of Daniel Petree, and Fannie P. Cottle as administratrix of Joram Petree, against Eobert Lansing as executor of Frederick Lansing, and Catharine M. Lansing. The plaintiffs allege an indebtedness of Frederick Lansing to Moses Petree, for money paid by David Petree for the use of Frederick Lansing as his surety on a note, and a similar claim in behalf of Joram Petree. The complaint alleges that by the will of Frederick Lansing, Eobert Lansing his executor was clothed with a power
The third answer of the defendant Catharine is as follows : “That the plaintiffs are not jointly interested in the subject matters stated in the complaint, and cannot maintain this action jointly: and the defendants say there is a misjoinder of plaintiffs.”
This answer is interposed in connection with a general denial, except as to certain matters, and other denials of fact. The plaintiffs demurred to this third answer. The demurrer was overruled by the Special Term, upon the ground that the plaintiffs cannot join in this action; and the complaint was upon that ground dismissed as to the said defendant Catharine.
■ It is quite clear that the demurrer was well taken, and should have been sustained. If there was a misjoinder of parties plaintiff that defect appeared upon the face of the complaint, which fully sets out the respective claims and titles to relief of the plaintiffs. Where this is the case the defendant waives the objection if he omits to demur. He cannot at the same time both demur and
But there was no misjoinder of parties. The suit was properly commenced in the name of both the parties, for themselves and all other creditors of the estate of Frederick Lansing who should choose to come in and avail themselves of the proceeding. The defendant Robert Lansing is on the face of the complaint a trustee. The creditors are cestuis gue trust, each having his claim against the common fund, and the demands of the plaintiffs and all other creditors of the estate are cognizable in equity. (Story's Eq. Jur. §§ 532, 538.)
Whenever there are creditors, or other persons, having demands (which are cognizable in equity of equal standing) upon a common fund or estate out of which they claim to be paid, the proper course is for them to unite in one bill in behalf' of all.. Such a bill is not multifarious. (Lentilhon v. Moffat, 1 Edw. Ch. 451.) “Avery common species of suit by creditors is, that wherein a few file a bill in behalf of themselves and the other creditors of their deceased debtor, against his representatives, for an account and application of his assets, real as well as personal, in payment of their demands.” (Barbour on Parties, 385. Story's Eq. Jur. § 538.)
The judgment appealed from must be reversed, and judgment ordered for the plaintiffs on the demurrer, -with costs, and with costs of the appeal to the respondents.
Mullin, P. J., did not sit.
Judgment reversed.
Talcott and E. D. Smith, Justices.]