50 Barb. 55 | N.Y. Sup. Ct. | 1867
If the demurrer to the plaintiff’s complaint" in this action can he sustained, it must be upon the ground that several causes of action are improperly united. The defect of parties for which a demurrer is allowed under section 344 of the Code, is a deficiency of, and not too many, parties. A demurrer' will not lie for a misjoinder of parties. (Peabody v. Washington Co. Mut. Ins. Co., 20 Barb. 342. Davy v. Betts, 23 How. Pr. 396. Gregory v. Oaksmith, 12 id. 134. Id. 547. Pinckney v. Wallace, 1 Abb. Pr. 82. Id. 44. Barbour on Parties, 544. 16 Barb. 541.) The joinder of too many parties as defendants, when there is no misjoinder of subjects, is not a ground of demurrer by any one of them against whom the plaintiff states a good cause of action. (New York and New Haven Railroad Co. v. Schuyler, et al., 17 N. Y. Rep. 592, 604.)
- It is urged that the causes of action set forth in the plaintiff’s complaint embrace claims to recover real estate and to compel conveyances thereof, which can only be brought by the heirs at law or devisees, and claims to recover money and to enforce an accounting, which should he brought by the administrators of George P. Eichtmyer, deceased. The action is brought to close up a trust of both real and personal property. Although the trusts were created by different instruments, they are between the same parties, and relate to the same subject matter. Their object was to make a provision for the cestui que trust, and had the trustee and the cestui quetrust both been alive, there can, I think, be no doubt but that an action could have been brought by the latter against the former to close up the trust. The trusts created related
The amount in the hands of the defendants, as successors to the trustee, and as the persons who have received the avails of .the estate, is a claim arising out of the transaction connected with the whole trust, and is so mixed up with the main subject matter—the maintenance and support of the cestui que trust—that it cannot very well be separated from the remainder of the trust, hlor does it necessarily follow that the claim as to the real estate can only be properly enforced by the heirs at law, and no other parties. This also is a part of the same transaction, and may very properly, I think, be united with the claim to account for the personal property received. The administrators are proper parties:and
It is not necessary to make the administrators of Abraham Richtmyer parties and defendants, because the estate has been distributed among the defendants, his widow and heirs at law, as set forth in the complaint. But if it had been, the defendants have not demurred on that account, and the objection, therefore, is not available.
I have entertained some little doubt upon the question whether the averment in the complaint, that the defendant Ervilla, took possession of the real estate upon the death of her husband, and has since been and still is in the receipt of the rents and profits does not contain a separate cause of action ; but I am inclined to think that it is only a statement of some of the facts constituting the plaintiffs’ cause of action, and is not of itself a separate cause of action. It is one of the incidents to the main object of the action, which is to compel an accounting and to close up a trust. If the action had been to close up the matters connected with the real estate, I think this averment would have been proper and necessary. If it could not be effectually closed up in one suit, and until after a liability under the trust had been established and a judgment obtained accordingly, the parties would be left to pursue a separate remedy against Ervilla alone, for the notes received by her. This, it seems to me, would scarcely be required in an action of such a character, either as to the. real estate or where the real and personal are inseparably connected, as they are here. If such a rule could be invoked, then if one of the heirs had received a.portion of' the rents and profits, and another a portion, it would be necessary to bring separate suits against each one. Ervilla being the widow of the trustee, circumstances might be shown
It is said that the- causes of action “ must affect all the parties to the action,” (that is, must each affect all the parties.) The case to which we are referred as authority for the doctrine last stated, (15 How. Pr. 85,) was an action where several causes of action were united against several defendants where there was no connection whatever between the defendants, and where the transactions, with the defendants, were separate and distinct, and unconnected with each other. In the case at bar, the cause of action set forth does, I think, affect all the parties, and is one of that class of actions which is favored in equity, and which authorizes all the parties interested to be brought in, so as to do ample and complete justice and thus prevent excessive litigation. (Story’s Eq. Juris. § 457.) In the New York and New Haven Railroad Co. v. Schuyler, (17 N. Y. Rep. 592,) it was held that the joinder of too many persons as defendants, when there is no misjoinder- of subjects, is not a ground of demurrer, by any one of them against whom the plaintiff states a good cause of action. The learned judge, in discussing the question, says : “ In this state, the joinder in one suit of causes of action in some sense distinct from each other, with all the necessary parties for their determination, has always been allowed with great liberality where the convenience and the ends of justice have required itand he cites 6 John. Oh. 139, where different júdgment creditors united in one bill for the purpose of reaching the estate of the common debtor, and 4 Cowen, 682, where the bill charged that the several defendants, in combination with each other and with the debtor of the plaintiff, took separate conveyances of his property without consideration and with an intent to defraud the plaintiffs,
It is especially urged that the complaint was defective because of the joinder of the husbands of three, of the plaintiffs, and that this ground is sufficiently stated, under the allegation that the complaint does not state facts sufficient to constitute a cause of action. We have been referred to several authorities which are supposed to sustain this position. (8 How. Pr. 389. 24 id. 353. 29 Barb. 512. 35 id. 68.) I have carefully examined them, and with the exception of 8 How. 389, which was a special term decision, the
I think that the order of the special term should be affirmed, with leave to the defendants to answer upon the usual terms.
Teekhmn. Miller and Sogehoom, Justices.]