Groshon and others vs. Lyon, 16 Barb. 461

By the Court, Mitchell, J. Augustus Van Cortlandt, the elder, died in 1823, leaving a last will and codicils. In the last codicil, Augustus Van Cortlandt the younger was appointed trustee for Mrs. Meyer and her children. He died, leaving those trusts unexecuted, the fund amounting to about $23,500. In November, 1840, on the petition of Mrs. Meyer, Mr. Lyon was appointed trustee under the last codicil. The property of Augustus Van Cortlandt the younger, and of his brother Henry, consisted principally of real estate, and proceedings were had in chancery for its partition and for the payment of debts.

In that partition suit Mr. Lyon as such trustee made application to the court for leave to purchase part of the real estate on behalf of the cestuis que trust, and he was authorized by the court on the 19th of September, 1842, to purchase five houses and lots on Franklin street, provided the purchase should not be made at a price beyond the valuation made by Stephen Whitney and J. Phillips Phoenix. He made the purchase accordingly, and thus invested so much of the trust moneys as was equal to the purchase money, in this real estate. On the petition of Francena Meyer, the mother, Mr.

Lyon was appointed trustee in other respects, and was authorized to buy in like manner, as trustee, an amount not exceeding one-fifth of the real estate in the partition suit, and to hold the part declared by the decree to belong to the infant children of Mrs. Meyer, in trust for the children, subject to her life estate therein. In February, 1848, Mr. Lyon presented his petition, setting forth substantially the above facts; that Mr.

Meyer was dead, and two of the children then of age, and praying that he might be permitted to render an account of his acts and doings as such trustee, and have the same passed upon and settled; and. that he might be discharged from the trusts, and that another person might be appointed trustee in his place. On the 5th of February, 1848, an order was made on that petition, referring it to Philo T. Buggies Esq. to take proof of the facts, &c. stated in the petition, and directing due notice of the reference to be given to Mrs.

Meyer and the adult children, and appointing a guardian ad litem for the infants, in that proceeding ; and ordering Mr. Lyon to render before the referee an account of all /its acts and doings as trustee, under the above mentioned orders, together with an account of all his receipts and disbursements as such trustee. And the referee was to report whether it would be proper to appoint a new triistee. The plaintiffs are the'infant children of Mrs. Meyer, and they filed their complaint in March, 1849, against the defendant.

In his answer the defendant set up the above mentioned proceedings on his petition to account, and the order thereon, as a bar to this action. To ascertain whether the two proceedings -are for the sapie cause of action, it is proper to look at the prayer in each, and see if the same relief can be given in each. The. complaint sets forth the appointment, of Mr.

Lyon as trustee, and states the amount of money due by Augustus VanCortlandt, the younger, as trustee; that $28,108 were paid into court as due to,that trust fund, and that Lyon alleges that he had invested this .money in the five houses, at $30,000. ° The complaint insists that Mr. Lyon had no legal authority so to invest it; and that the' valuation of the real estate made in the. petition for leave to invest in real estate, was exaggerated.

And then the complaint demands that the defendant may be, removed and another trustee appointed in his place; that he may account for all the trust property received by him, or which he might have received if he had performed his trust according to the directions concerning the management thereof, and may pay over the same to such person as the court may direct; and "z that he render compensation in damages for the breaches of trust committed by him; and for further relief. These plaintiffs .were necessary parties to be brought in on the accounting ordered upon Mr. Lyon’s petition; and although Mrs.

Meyer was also such a party, that in no wise put them to any disadvantage in proceeding under that order, nor limited their rights,. When a trustee, on his own petition or otherwise, is ordered to render an account of his, actings ■ and doings, and to have the samp passed.upon and settled, and that another trustee be appointed in his place, (as is ordered.here, on Mr.

Lyon’s petition,) the questions necessarily to be passed upon, among others, are, whether the investments of the .trust fund, made by him, were .legally authorized, and then , that, he .account for all. ■ the trust property received by him, or.which he.might have received if he had performed his trust according to, the ..directions concerning .the., management thereof, and that he pay over, the . same, to such persons.as the court may direct,, and render compensation . in- damages for the breaches. of trust. These, last, ■ constitute, the relief, sought,by the complaint.

The same-relief., therefore is;sought by the complaint that is -ordered, - expressly, or implieclly in if la e.order,, made pp, M^t Lyon’s petition) ;andvcaj>.4be obtained on that order. In the proceedings on the petition, the petitioner merely states his case, and that in such general terms merely as may suffice to show that he is entitled to an account, and the opposite parties can then, without any formal pleading, set up any objection to his accounts and show any illegality in them.

It makes no difference, therefore, that the plaintiff alleges certain illegalities ; as they could be proved in the proceedings on the petition also. There are then two proceedings pending, for the same cause of action, and in both of which the same relief is sought and obtainable, and in one of which there is an order equivalent .to the judgment to account, in an action for an account, namely, in the first proceeding; and in that, as the evidence shows, these plaintiffs have also been present by.their .counsel and guardian ad litem before the referee, contesting the account.

It certainly would not be for the interest of infants or cestuis que trust generally to have a formal action commenced and running on pari passu with a prior order on their trustee to account, obtained on his own petition. The trustee should not be subjected to two litigations; nor the infants to the double expense of these proceedings. Notwithstanding this, the plaintiffs insist that the prior proceeding was no bar to their subsequent action.

Section 144 of the code specifies, among other causes of demurrer, “ that there is another action pending between the same parties, for the same causeand

section 147 allows the same objection to be taken by answer, when it does not appear upon the face of the complaint. ■ It was contended by the plaintiff that this objection could only be raised when the previous proceeding was an action, as defined by the code, and when the same person was plaintiff in both proceedings. As to the last parti of the objection, the language used in

section 144, shows that such was not the intention. It is not “ an action pending by the same plaintiff against the same defendants,” as it should have been, to sustain the objection; but “ an action pending between the same parties.” It is between the same parties, although those who are actors in one action are the defendants in the other. Such also was the rule,.in some cases at least, ' before the code.

If a bill were filed by one or more creditors of a deceased person, against the executor or administrator, either singly for themselves or specially on behalf of themselves find all other creditors, and the usual decree to account were made against the executor or administrator, the decree "and the suit "were then regarded as for the benefit of, and to control, all the creditors. All might come in and prove their debts, and any creditor attempting to sue the executor or administrator, at law, would be enjoined from proceeding in his suit.

The decree quod Computet was sufficient for "this purpose; and it Was "not necessary that there should be z. final decree. (Thompson v. Brown,. 4 John. Ch. Rep. 643.) And the relief could be granted on motion, without a separate bill for that purpose. (Paxton v. Douglas, 8 Ves. 520. And see Perry v.

Phelps, 10 Id. 39.) The principle recognized by the court of chancery in these cases was, that when there was a decree in one cause, though not final, and under it the rights of all parties interested in a fund could be protected, it would not allow those who had charge of the fund to be persecuted by numerous suits, nor the fund to be squandered in litigation; and the rule was applied to persons who were not parties to the first suit, and at the instance of the defendant in that first suit.

So, as so'on as a decree is made in a suit brought by a creditor of a limited partnership, after its insolvency, proceedings may be stayed in any suit instituted by any other creditor, although the last creditor is no party to the first suit; if no other relief could be had in his suit'than could be had under the decree already made. (Innes v.

Lansing, 7 Paige, 584, and cases thefe cited.) Thus the great principle is, that if full relief can be had in the one suit, no others shall be allowed; and that when an executor or trustee holds a fund subject to the control of the court, and there is a decree that he account, although that decree be not the final ’decree in the cause, it has Such 'effect that all having any claim on the fund may come in and prove their claims, however they may be founded. The cases quoted contain nothing contrary to this. In the Earl of Newburgh v.

Wren, (2 Vern. 220,) the mortgagee was allowed -"to file his bill to foreclose, although the mortgagor had previously filed a bill to redeem. This was exceedingly proper; for if the mortgagor’s bill were withdrawn, or dismissed, still the mortgagee was entitled to the relief which he sought, and which in fact he would not get on the first bill. In Reeve v. Dalby, (2 Sim. & Stu. 464,) it was held that a prior suit by husband and wife, in relation to her separate property, could not be pleaded in bar of a subsequent suit by the wife and her next friend.

This was because the first suit was regarded as the husband’s only, and the last as the wife's properly; and there was no general decree to account, for the benefit of all interested in the fund. But in Rogers v.

King, (8 Paige, 210,) while it was held that one creditor might sue the executor, in chancery, for an account, and another creditor cite him before the surrogate to account, and each might proceed before the two tribunals at the same time, until there was a decree to account; yet, that as soon as that decree was made in chancery, the proceeding before the surrogate, by the other parties, should be stayed. ' And the decree might be set up as a bar to any proceeding before the surrogate for an account.

And the chancellor also held that if the sam.e party filed a bill in equity against the executor, for an account, and afterwards cited the executor before the surrogate, to account, the pendency of the suit in chancery should be allowed by the surrogate, in abatement of the proceeding before Mm, even before the decree to account. The converse of the rule thus laid down, would also hold. If there were a decree before the surrogate, to account, it would be a bar to any proceeding for an account in the court of chancery, in all cases where full relief could be had before the surrogate.

This case answers another objection, also; that to bar an action, the prior proceeding must be an action. The proceeding before the surrogate is not an action; and it must be the intention of the code now, as it was of the law before, that if there is a decree made, in which all interested may come in and obtain their rights effectually, no other action shall be allowed. This .was a, right which the. trustee had.before—a defence which.he''could make^and .there, is nothing in the eo.de. to take it' away. The code may not mention it as a defense, but that does not take it away.

It- does not state that it shall be a defense, or a ground of demurrer, that the plaintiff has already a judgment for the same cause of action, in his favor. Yet, unquestionably, that is a valid defense. So here, this defendant substantially sets up that these plaintiffs have a judgment or decree already against him, giving them all the right to compel him to account that they could have in this action. It makes no difference in effect, that that judgment to account was made on his'motion, or on petition, and not by bill. It is equally binding on him; and after it was once made, he could not withdraw from it.

It became a decree for these plaintiffs, and the trustee could not, after that, vacate the decree and withdraw his petition to account. (See Clowes v. Van Antwerp, 4 Barb. 416.) In this view of the case, it is not material whether the guardian for the infants was at.first properly appointed or not. After the order to account, the infants could come in and get a guardian ad litem appointed. The appointment also was good until it was vacated; and when vacated, another guardian was appointed.

So an attachment and levy on property might formerly be pleaded in abatement or bar of a subsequent action, and could still be, although an attachment is not an action, any more than a petition is. The same word must sometimes have different meanings, according to its different applications; and it would be proper to hold, in order to carry out the spirit of the code, that “ the action pending between the same parties,” mentioned in the 144th

section of the code, was any proceeding in which the rights of the plaintiff in the last suit would be fully protected, whether it were strictly an action, an attachment, or citation before a surrogate, or a proceeding in court founded on a petition. It has been shown that when there is a general decree to . account, it affects all interested in the -fund: and still one or more suing in another action, will be restrained. It is immaterial that they alone are plaintiffs in their suit.

In such cases it is not necessary, to constitute a bar, that the action or both actions or proceedings,■ are between the same• parties, as it-may be before decree. It is immaterial,, therefore, that "Mrs. Meyer is not a party to this action, and is a party to the proceedings on the petition. [New-York General Term, October 3, 1853. Edmonds, Edwards, Mitchell, Roosevelt and Morris, Justices.] The judgment of the special term is affirmed, with costs.