Opinion
November, 1900.
Thomas Allison and Morris A. Tyng, for plaintiff.
George Zabriskie, for defendant-demurrant.
The action is brought by a beneficiary for an accounting by trustees, and, as part of the relief, the removal of one is sought, upon sufficient allegations. Irrespective of the sufficiency of the allegations of the complaint, as to other matters touching the acts of the demurring trustees, a cause of action, as against them, is stated, for they are necessary parties to the action to remove their co-trustee, and, at least, so far, the complaint is proof against their demurrer.
In such an action, the rule is that all trustees who have acted as such, and have not been discharged, should be joined as parties. 2 Perry Trusts (5th ed.), § 876.
One demurrant takes the further ground that the pendency of a special proceeding for his discharge, which is set forth in the complaint, discloses "another action pending," but clearly this ground is untenable.
Not only does the complaint fail to show that the parties to the proceeding are the same (Code, § 488, subd. 4), but it is disclosed by the allegations that the plaintiff cannot obtain complete relief in that proceeding, while, to render this ground of demurrer availing, it must appear that "the whole purpose of the second suit was attainable in the first." Parker v. Selye, 3 A.D. 149.
The claim that the executors of Charles Kennedy Hamilton (through whom these trustees derived title to the corporate interests as to which mismanagement is charged) should be made parties, appears to be without foundation.
Assuming, with the demurrant, that these executors retained some interest in the properties, no claim is made against them, nor in their favor, by the plaintiff, to recover property in their behalf. The plaintiff seeks only her share in the avails of properties which the executors did transfer to the trustees, and the presence of the executors is certainly not necessary to a determination of what the trustees received.
Demurrers overruled, with costs; leave to plead over on usual terms.