
    Mary R. Hunt and George T. Riggs, Resp’ts, v. George C. Genet, as Trustee under the last Will and Testament of Caroline M. Riggs, deceased, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 4, 1887.)
    
    1. Jurisdiction of city court of ÍTew York—Action to oust a trustee.
    The city court has jurisdiction, of an action wherein the complaint demands judgment against a natural person or against a corporation for a sum of money only. When the complaint demands judgment against a trustee for a sum of money and that he, as trustee, has no claim to the same, the city court has no jurisdiction.
    2. Same—Interpleader.
    If the statute does not give to the city court the right to oust a trustee by proceedings instituted for that particular purpose, it cannot turn him out through the ancillary proceedings of an interpleader.
    This suit was originally brought, in the city court of New York, by these plaintiffs, against the New York Refining Company, an alleged corporation, to recover $73.33 rent under an alleged lease, made to said company by one Franklin C. Field, as trustee, of a portion of premises No. 141 Maiden lane, New York city, at $880 a year. The defendants thereupon moved the court to substitute this appellant as defendant in their place upon their paying the amount of rent into court, less ten dollars for costs of the motion, which order was granted, and plaintiffs were also allowed to amend their complaint. •
    The amended complaint demanded that it may be adjudged that they are entitled to the money deposited in court and that defendant, George C. Genet, as trustee, has no claim to the same.
    The trial resulted in a judgment in favor of the plaintiff, which was affirmed by the general term of the city court, and the defendant appealed to this court.
    
      Albert B. Genet, for app’lt; Lord, Day & Lord, for resp’t; Daniel Lord, of counsel.
   Van Hoesen, J.

The only question to be considered is this, had the city court jurisdiction of this action? That court had “jurisdiction of an action against a natural person or against a corporation wherein the complaint demands judgment for a sum of money only.”

The complaint in this action demands this judgment against Genet, the trustee, “that the plaintiffs are entitled' to the said sum of sixty dollars, and that the defendant George 0. Genet, as trustee as aforesaid, has no claim to the same.”

It is plain that instead of demanding judgment for a sum of money only, the complaint demands the further judgment that Genet, in his character as trustee, has no claim upon the money.

This may at first blush seem like catching at words, but the criticism that I have made upon the prayer for judgment involves the point that is decisive of this case.

What are the plaintiffs seeking to accomplish by this action?

To have their mother’s will declared void, to have the trust created by the will adjudged invalid because it is a violation of the statute against alienation, to oust the trustee from the performance of his official functions, and thus to get possession of a fund that the will confides to the trustee.

The complaint sets out every allegation necessary to support the prayer for relief, and the city court, in order to warrant the judgment that it rendered in favor of the plaintiffs, was compelled to adjudge the trust invalid. The first finding of law is, ‘ The will of Caroline M. Riggs is not valid.”

If the trustee fails to pay to his cestui que trust the money to which the latter is entitled, is the right to enforce the trust to be treated as a mere demand for money, and upon the theory that he is only demanding judgment for a sum of money, may the cestui qui trust compel the performance of the trust by suing the trustee in the city court? Such appears to have been the opinion of the city court.

In this case, the object of the plaintiffs was to remove the trustee and terminate his powers. If this judgment stands, that object has been accomplished. As between trustees and cestui que trust it is res adjudicata that the trust is invalid, and that the trustee has no right to the rents, or to do any act that falls within the sphere of a trustee’s duties. The trustee is displaced as completely as he would be by the judgment of the supreme or of a superior city court.

Did the legislature contemplate anything like this when they conferred upon the city court jurisdiction of a demand for “money only.”

The order of interpleader cannot enlarge the original jurisdiction of the city court. If the statute does not give to the city court, the right to oust a trustee by a proceeding instituted for that particular purpose, it is preposterous to suppose that it may turn him out if it can succeed in getting hold of him through the ancillary proceeding of an interpleader.

It seems unnecessary to enlarge upon the point. I think the judgment against the trustee, Genet, should be reversed. We are asked to award no costs if the judgment be reversed, and it is argued by the plaintiffs that there is no doubt that the city court had jurisdiction of the action against the New York Refining Company, the original defendant; and that it is no fault of the plaintiffs that the Refining Company succeeded in obtaining an order of interpleader, and the substitution in its place as defendant of Genet the trustee.

I do not concede that the city court had jurisdiction of the action as it was brought against the Refining Company. The Refining Company is the tenant; the trustee under the marriage settlement of Caroline M. Riggs was lessor; and Genet is the testamentary trustee to whom Mrs. Riggs devised the demised premises, under the power of appointment contained in the marriage settlement.

The plaintiffs as heirs at law of Mrs. Riggs sought to place themselves in the position of successors to Field, the trustee under the marriage settlement, and thus to make themselves the landlords of the Refining Company. Accordingly they sued the Eefining Company for a month’s rent of the demised premises. In order to succeed they were compelled to attack the validity of the will of Caroline M. Eiggs.

The Eefining Company in self-defence was forced to make the trustee under the will a party to the action. He was a necessary party, and the plaintiffs could not possibly have maintained their action without impleading him. His estate could not be taken from him without giving him his day in court.

Of his own motion, if the refining company had not taken exception by answer or by demurrer to the defect of parties, the court would have been compelled, under section 452, to cause Genet to be brought in as a defendant, because, in his absence, it could not determine the controversy as between the parties to it without prejudice to the rights of Genet, or by saving his rights.

The action then from the very first was neither more nor less than a controversy between trustees and cestuis que trustent for the possession of the trust estate, and it ought not to have been brought in the city court.

For the costs and expenses that have been incurred the plaintiffs are morally liable, and their application to be relieved from costs ought not, therefore, to be granted.

A very different case would have been presented if the will had been adjudged invalid by the judgment of a competent court, and if that judgment had been pleaded and proved as a final adjudication of the rights of the parties. In that case there would have been no contest in the city court over the validity of the will, and the ownership of the trust estate, for Genet,'if he claimed the rents, would be acting as an individual and not as a trustee performing his duties.

The judgment should be reversed, with costs.

Larremore, 0. J., and Daly, J., concur.  