Cutbill v. Scott

Jenks, P. J.: The appellants sue individually and as administrators of Reynolds. The respondents are two creditors of said Reynolds. The said administrators instituted accounting proceedings in the Surrogate’s Court, and the two creditors were among those [42] who came in to contest the account. The referee appointed by the Surrogate’s Court reported that a sale made by the executors justified a surcharge because of inadequacy of price. While the accounting proceedings were pending, this action was begun on the equity side of the Supreme Court to undo the sale, and is to enjoin pendente lite the said proceedings in the Surrogate’s Court. The plaintiffs brought in numerous defendants, apparently including all of the creditors of the decedent. Thereupon the said two creditors, respondents, demurred that the complaint did not state a cause of action against them, and also moved for judgment on the pleadings. The Special Term granted the motion. I am of opinion that the order should be affirmed. The defendants were entitled to such demurrer. (Brownson v. Gifford, 8 How. Pr. 396.) The plaintiffs could not invoke the application of the rule of Townsend v. Bogert (126 N. Y. 370) and Delcambre v. Delcambre (210 id. 460) that would require answers in order to reveal the nature of defendants’ claims, inasmuch as the plaintiffs do not assert their ignorance thereof and do plead that these defendants were creditors of the decedent. If this were not enough, the prior proceedings in the accounting in the Surrogate’s Court, wherein the two respondents appeared, must have indicated the character and nature of the interest of the defendants as that of creditors. The defendants as creditors were not necessary parties unless upon a final accounting. (Wood v. Brown, 34 N. Y. 337; Smith v. Stevenson Brewing Co., 117 App. Div. 695.) It does not appear that the plaintiffs seek a final accounting in this action. The plaintiffs do not ask any relief against these defendants. It does not appear that these defendants have any interest in this action, or that they were in any way concerned in the said sale. They have no interest in the litigation, save an interest in the sense that they would wish to have the estate conserved in every way so that its debts may be discharged; but that is not enough to entitle the plaintiffs to bring them in and to insist that they must stay in against their will. (See Adams Eq. [8th Am. ed.] 316.) I think that the equity court had discretion to discharge them as parties (Wiser v. Blachly, 1 Johns. Ch. 437. See, too, [43] Pope v. Manhattan R. Co., 79 App. Div. 585), and that the discretion was exercised properly, upon the principle stated in Bump v. Gilchrist (52 Hun, 6, 8; affd., 127 N. Y. 668). The order is affirmed, with ten dollars costs and disbursements. Thomas, Rich, Putnam and Blackmar, JJ., concurred. . Order affirmed, with ten dollars costs and' disbursements.