MOWRY v. PEET

MOWRY v. PEET. N. Y. Supreme Court, First Department; Special Term and Chambers, December, 1879. Reference.—Executors and Administrators.—Parties. Pending a reference to determine a disputed claim against executors , ' or administrators under the statute—3 S. 8. 89, § 36 (3 Id. 6 ed. 96, § 47)—the court may, on motion, order that other persons, whose presence is necessary to a. complete determination of the controversy, be brought in. Motion by defendants to bring in a party. This was an action by Albert L. Mo wry against George I. Peet and John R. Caldwell, executors, &c., of Eleazer Peet. Plaintiff presented a claim against estate of the deceased, for $9,521.71, to his executors. It was disputed by them and referred, under the statute, to a referee (3 JR. 8. 96, 6 ed.). Pending the reference, it appeared that the ground of the claim was an alleged loan of moneys made to the testator in his lifetime through one Charles B. Peet, general partner in the limited partnership in which the plaintiff, Mowry, and the testator, Peet, were special partners. The witness, C. B. Peet, testified that he was the attorney, in fact, of plaintiff, and that the moneys loaned were moneys belonging to the plaintiff. It was claimed by defendants, the executors of Eleazer Peet, that the moneys were received by testator, not as a loan, but in part payment of sums due him from the partnership; also, that, if the payment to the testator of moneys were treated as a loan from plaintiff, still plaintiff had received more from the partnership than the testator ; and, as both were on an equal footing as to the special capital contributed, they should stand on an equal footing in receipts from the firm, and that plaintiff was bound to equalize the account. ‘ At this stage of the reference, in order that proper accounts of the partnership should be taken, the executors presented a petition to the court for an order bringing in Charles B. Peet, the general partner, as a party to this proceeding, it being claimed by defendants that the same incidents belonged to the proceeding, under the statute, as to an action, and that the general partner was a necessary party. E. L. Fancher, for the defendants and motion, cited the following authorities: Dayton on Surr. 389 ; Code, § 507; Ackley v. Ackley, 17 How. Pr. 26 ; Phillips v. Gorham, 17 N. Y. 275 ; Dobson v. Pearce, 12 Id. 156; Crary v. Goodman, 2 Id. 266; Foot v. Sprague, 12 How. Pr. 355; Jennings v. Whittemore, 2 Supm. Ct. [T. & C.] 378; Munson v. Howell, 20 How. Pr. 60; Walkenshaw v. Perzel, 32 Id. 310 ; Clare v. Stewart, 8 Hun, 127. Henry Hicoll, for plaintiff, opposed. [MAJORITY — Brady, J.] Brady, J. I have made several examinations of this case and have always arrived at the conclusion that the motion should be granted. The business relations of the witness, Charles B. Peet, to the plaintiff and the decedent, and that of each to the other, were such, when united to the demand herein, as to make it just that the contemplated accounting should be had, or, at least, that such an examination of the partnership accounts should be made as would determine the issue presented, whether the decedent in fact was the plaintiff’s debtor. The defendants should not be driven to a separate action. The court in this has ample power to bring in the necessary parties, and Charles B. Peet is a necessary party, for the purpose stated (Munson v. Howell, 20 How. Pr. 60; Code, §§ 507, 447, 452 ; Dayton on Surr. 389). Indeed, it is the duty of the court to order a person to be made' a party, when it appears at the hearing, or at any stage of the suit, that such a course is necessary to a complete determination of the controversy, even though no objection has been made by either party (1 Wait’s Pr. 164, and cases cited). I have no suggestion to make as to merits. The propriety of granting this motion is all that I have considered. Ordered accordingly. No appeal was taken.