Day v. Stone

J. F. Daly, J. There is but one cause of action stated in the complaint; it is against the administratrix of the plaintiff’s deceased agent, and it is brought to obtain an accounting, to obtain certain stock, books and papers, the property of plaintiff, to recover the amount found due plaintiff on the accounting, and the sum of $12,188 15, money of plaintiff, deposited by the deceased in his bank, and which with the above property and other moneys have been taken by the administratrix. She is made a defendant individually because she claims some interest in the subject-matter of the action—i. e., claims to have acted individually in taking possession of certain of the property, and as this action is equitable in its nature, it is proper that her rights and claims should be settled in it. This complaint is less open to criticism than that in Christy v. Libby (5 Abb. Pr. [N. S.] 192), sustained by the general term of this court on appeal from an order overruling a demurrer to it. The particular point discussed on the argument in this case is not treated in the opinion of that general term, but one of the grounds of demurrer there was that two causes of action had been improperly joined—one against the defendant as collector for an accounting, and the other against him individually for neglect and mismanagement of the estate of which he was collector. The case at bar differs from McMahon v. Allen (1 [354] Hilt. 103); Warth v. Radde (18 Abb. Pr. 396), and Wiltsie v. Beardsley (Hill & D. Supp. 386), because there are not two canses of action set forth in the complaint. Any bill in equity might he the subject of demurrer where several claimants to a fund are joined as defendants to obtain judicial determination ef their rights, if the demurrer here could he maintained. The order appealed from should be affirmed. Daly, Ch. J. and Loew, J., concurred. The order should be affirmed.