
    Elizabeth Sturmwald, Appellant, Respondent, v. Emma F. Poppe, and Others, as Executors, etc., of Emil Poppe,. Deceased, Respondents, Appellants.
    
      (Supreme Court, Appellate Division, First Department,
    
    
      February 5, 1915.)
    Will—Direction that Business be Continued by Surviving Partner— Annuity to Widow—Acceptance of Legacy by Surviving Partner— Obligation to Widow—Parties—Representatives of Testator— Joinder of Actions.
    Where a will provided that the testator’s partner should carry on the partnership business during the lifetime of the testator’s wife and pay her interest on the testator’s capital invested in the business and an annuity out of the profits, the balance of the profits to be retained by the surviving partner, the latter by accepting the legacy of the surplus profits accepted also the obligation- to make the payments to the testator’s widow.
    In an action by the -widow against the personal representatives of her husband’s partner, since deceased, to recover sums due under the will aforesaid, she need not make her husband’s representatives parties to the action, for the husband’s estate had no interest in the partnership business during the plaintiff’s life.
    Moreover, the plaintiff may recover in one action- moneys which -became-due from her husband’s partner during his lifetime and moneys due from his estate after his death.
    Appeal by the plaintiff, Elizabeth Sturmwald, from an order.of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the ■ county of New York on the 9th day of November, 1914, denying plaintiff’s motion, for judgment on the pleadings, after a demurrer had been interposed to the complaint.
    Appeal by the defendants, Emma F. Poppe and others, as executors, from so much of said order as grants plaintiff leave to serve an amended complaint within twenty days.
    George H. Taylor, Jr., for the plaintiff.
    • Clarence U. Oarruth, for the defendants.
   Dowling, J.—

Appeal from an order denying plaintiff’s motion for judgment on the pleadings, consisting of a complaint and an amended demurrer thereto. The complaint alleges the following facts: Raphael Sturmwald died .on April 13, 1894, leaving a last will and testament, thereafter duly admitted to probate, whereby he directed that after his death the business carried on by him and his son-in-law, Emil Poppe, in the manufacture of paper boxes shall be carried on by my said son-in-law during the lifetime of my said wife, and that during that time he shall, in the first place, pay to my said wife interest at the rate of six per cent, per annum upon the amount of capital which I may have invested in said business at the time of my decease as shown by the books of said firm, and that he shall in the next place pay to my said wife out of the profits of said business the sum of one thousand dollars per annum, and that he shall retain the remainder of said profits for his own use and benefit — said payments to be made to my said wife in equal quarter-yearly payments, the provisions of this clause being in accordance with the partnership agreement existing between me and my,, said son-in-law.” Testator left him surviving his widow who is the plaintiff herein. Subsequent to the probate of the will, Emil Poppe, therein referred to, accepted the terms and provisions for his benefit contained therein, and thereafter and until the time of his death carried on the business' theretofore conducted by him and Sturmwald as partners, and up to Poppe’s death he duly paid to the plaintiff interest at the rate of six per cent, per annum upon the amount of the capital which Sturmwald had in the business at the time of his death, as shown by the firm’s books, and also paid to the plaintiff, out of the profits' of the business, the sum of $1,000 per annum, retaining the remainder of said profits to his own use and profit, making the said payments to plaintiff in equal quarter-yearly payments, as provided in the will. The amount of capital (as shown on the firm’s books) which Sturmwald had invested at the time of his death was $10,-110.47. Emil Poppe died November 20, 1913, leaving a last will and testament, whereof the defendants are executors. Since his death the defendants have been carrying on the partnership business of Sturmwald & Poppe, and have received as profits therefrom in excess of the sum of $750. ETeither Poppe nor the defendants have paid the interest accruing since October 13, 1913, nor the quarterly profits falling due January 14, ■ 1914, and April 14, 1914, amounting to $250 each. The quarterly interest payments due January 14, 1914, and April 14, 1914, amount to $151.65 each. The prayer for relief is that judgment be granted against defendants for the total of such payments.

We believe that the complaint sufficiently sets forth a cause of action upon the acceptance by the legatee of the use of the interest of the testator in the copartnership and the total profits to be realized from the partnership business during the lifetime of the widow, subject to the payment to her of the interest on the decedent’s capital invested therein, and of the sum of $1,000 per annum out of the profits. The acceptance of this legacy subject to this charge imposed upon Poppe the duty of paying the charge. (Gridley v. Gridley, 24 N. Y. 130 ; Brown v. Knapp, 79 id. 136 ; Dinan v. Coneys, 143 id. 544.) It is , urged that there is a defect of parties plaintiff or defendant, in that the personal representatives of the testator, Eaphael Sturmwald, are not made parties. But the estate of Eaphael Sturmwald has no interest in this litigation, for during the lifetime of the plaintiff such estate receives nothing whatever out of the profits of the business, which are divisible only between the plaintiff and the estate of Poppe in the manner fixed by Sturmwald’s will. ¡Nor are causes of action improperly united, in that sums due from Poppe in his lifetime are joined with those payable by his representatives after his decease, for the amounts payable to the plaintiff, which are sued for here, accrued respectively January 14, 1914, and April 14, 1914, both dates being after the death of Poppe, and it is alleged that the executors of Poppe have continued the business after his death, have used the interest of the plaintiff’s testator in the copartnership, and have realized profits therefrom. It is not determined what recovery plaintiff is entitled to. All that it is necessary now to determine is, that the plaintiff is entitled to some relief on the facts alleged in the complaint.

The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements to the plaintiff, and the motion for judgment granted, but with leave to the defendants to withdraw their demurrer and interpose an answer within twenty days on payment of said costs.

Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to plaintiff, and motion for judgment granted, with leave to defendants to withdraw demurrer and to answer on payment of costs.  