Richard Donnelly, Individually and as Administrator, etc., of Margaret Donnelly, Deceased, Appellant, v. Hannah Lambert, Individually and as Executrix and Trustee under the Last Will and Testament of Richard Donnelly, Deceased, Respondent

Richard Donnelly, Individually and as Administrator, etc., of Margaret Donnelly, Deceased, Appellant, v. Hannah Lambert, Individually and as Executrix and Trustee under the Last Will and Testament of Richard Donnelly, Deceased, Respondent. Action for an accounting—it may properly embrace transactions on contract and in tort — it may ask judgment against the defendant individually and as executor . and as trustee. In a suit in equity for an accounting it is proper 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 adequate and complete relief. The complaint in an action brought by the plaintiff individually and as administrator of his sister alleged that the defendant was the executrix of his father’s will, and was also trustee of certain real property of which the plaintiff and his sister were the beneficiaries; that in 1887 the defendant satisfied an outstanding mortgage for 8600 upon the trust estate; that she falsely represented to the plaintiff that the rents and profits collected by her from the premises were insufficient to satisfy the mortgage, and that there were certain other expenses and liens upon the property, and that she had been obliged to advance the sum of §1,200 upon the property out of her own estate; that by reason of such representations she induced the plaintiff to execute to her a mortgage upon the property for the sum of §1,200. The defendant was sued individually and as executrix and trustee, and the relief demanded was an accounting of the estate, and that the plaintiff be adjudged to be the owner of the mortgage executed by him. Scld, that the complaint was not demurrable upon the ground that two causes of action were improperly united therein, namely, one on contract to compel the executrix and trustee to account and one in tort to declare the defendant individually a trustee ex maleficio because of an alleged fraud; That the plaintiff properly sought an accounting, not only with respect to the mortgage transaction, but one which would cover the entire trust period during which the defendant had managed the estate, and that relief was properly asked against the defendant in each capacity in which she was made a party. Appeal by the plaintiff,- Richard Donnelly, individually and as administrator, etc., of Margaret Donnelly, deceased, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of February, 1901, upon the decision of the court rendered after a trial at the New York Special Term sustaining the demurrer to the complaint interposed by the defendant Hannah, Lambert individually. The plaintiff, in his own behalf and as administrator of his sister, brings suit against the defendant individually and as executrix and trustee, under the will of his father to obtain an accounting of the estate of Richard Donnelly, deceased. The judgment demanded is for the rents and profits thereof and that the plaintiff may be adjudged to be the rightful owner of, a certain mortgage which, as he alleges, upon misrepresentations of the defendant as to the condition of the estate, he executed on his share for her benefit. It is alleged that, by the will of the elder Richard Donnelly, probated April 30,1883, the defendant was made his executrix, and was also made trustee of certain real property, as to which she was to collect the rents and profits, and pay the same over to the testator’s two children, the plaintiff herein and his sister Margaret, who died August 15, 1886. The complaint further alleges that ever since the death of the -testator and until March, 1898, the defendant was in possession and control of the property, and has never up to the present time accounted in any manner for the moneys to the plaintiff nor "paid over the proceeds arising from the trust, by reason of which there is a large sum due the plaintiff; that in April, 1887, the defendant satisfied a certain mortgage for $600, which was outstanding against the estate, and “ by representing to the plaintiff that the rents and profits collected by her since the death of Richard Donnelly, the elder, from the said premises were insufficient to satisfy said mortgage, and that there were certain other expenses and liens upon the said property, and that in all, she, the defendant, was obliged to advance the sum of $1,200 upon the said property out of her own estate; and, without rendering an account to the plaintiff, induced the plaintiff to execute to her a mortgage upon the said property for the sum of $1,200.” The complaint further stated that “ the plaintiff has since been informed and verily believes that defendant’s said representations were false ; that the value of the rents, profits and income * * * were sufficient or nearly sufficient to pay the amount due upon the former outstanding mortgage, * * * and that there were no other expenses, liens or encumbrances upon the said property, and that the plaintiff, having full faith and confidence in .the said representations of his said trustee Hannah Lambert was misled thereby to his damage.” Since March, 1898, the plaintiff has assumed possession and control of the premises referred to with the acquiescence of the trustee. To this complaint the defendant individually demurred upon the ground til at two causes of action, one on contract to compel an executrix and trustee to account, and one in tort to declare the defendant individually a trustee ex maleficio because of an alleged fraud, have been improperly united; because the cause of action against the executrix and trustee does not affect the individual defendant and vice versa, and because there were not sufficient facts stated to constitute a cause of action. Upon the ground that two causes of action were improperly united the demurrer was sustained; and from the interlocutory judgment so entered the plaintiff appeals. J. Noble Hayes, for the appellant. Henry A. Forster, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: 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 action set forth, a serious question would he presented as to whether either under section 484 or section 1815 of the Code of Civil Procedure, such causes could be United in the same complaint. As we read the pleading, however, there is but one cause of action stated, and that for an accounting; and the whole argument of the respondent appears to us to proceed upon a confusion of remedies or grounds of relief with causes of action. ■ 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 supposing that the cause of action is the trust fund, whereas the cause of action* as before stated, being the- violations and misappropriations of the trust, it is plain that these causes arise out of transactions connected with the same subject-matter of action, which is the trust itself. The error consists, I think, in not clearly distinguishing the question of proper or necessary parties to a suit in equity from the question of misjoinder of causes of action and of confounding the distinct prayers for relief with distinct causes of action. An attentive reader of the different branches of the prayer for judgment and the nine supposed different causes of action specified in the demurrer will show that the real grounds of demurrer are founded upon the several grounds for relief. The latter may be wholly omitted in the complaint, yet the plaintiff would be entitled to such relief as he could establish upon proper proof of alleged facts. The prayer for judgment is not demurrable.” And in Day v. Stone (15 Abb. Pr. [N. S.] 137) it was held (head note): “In the complaint, in .an action against the administrator of a deceased agent to compel an accounting, etc., the plaintiff may ask judgment against the administrator individually for the payment of moneys and the delivery of books and specific property belonging to plaintiff which came to the deceased as such agent and which the defendant has possession of and refuses to deliver. This is not joining two causes of action.” (See, also, Newcombe v. Lottimer, 12 N. Y. Supp. 381; Price v. Brown, 10 Abb. N. C. 67.) 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 of the estate without which it could not be determined whether the representations were or were not true, so that to obtain relief in that direction an accounting- would be required. If for such a purpose a suit in equity were brought against the defendant individually to cancel or set aside the mortgage, and as incidental thereto an accounting was demanded from. her as executrix and trustee, it would be clearly maintainable and not demurrable upon the ground of the uniting of two inconsistent causes of action; and yet if the defendant is right in her contention, there would be the same objection to such a complaint as is now made to the one before us.- 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 relief % The distinctions between actions at law and suits in equity have so frequently been pointed out that it is unnecessary to restate them beyond saying that in the latter, particularly where, questions of trust or fiduciary relations are involved, and where an accounting is asked for, it is competent to bring in all those who may be interested in the judgment or whose presence in the suit is necessary for the relief sought. 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.