
    Rowland W. Lassen, as Executor of Olga L. de Wasserman, Deceased, Plaintiff, v. Joseph W. Hambuechen, Defendant.
    Supreme Court, Special Term, New York County,
    July 12, 1945.
    
      Strooch, Strooch é Lavan for defendant.
    
      Marshall, Bratter é Seligson for plaintiff.
   Benvenga, J.

Motion to dismiss the complaint is disposed of as follows:

The second cause of action seeks to compel the defendant to account for moneys which he received as an individual and continued to keep after becoming a foreign executor. While no accounting ordinarily may be required of a foreign executor for acts done in his representative capacity unless the res is alleged to be within this State (Helme v. Buckelew, 229 N. Y. 363), a valid cause of action for an accounting may be alleged against a" person who is a foreign executor to compel him to account for moneys he received while .acting as an individual and before his appointment as a foreign executor. The second cause of action insofar as it seeks an accounting to this extent is sufficiently alleged.

The third causé of action attempts to allege a direct claim against the defendant for an accounting predicated upon the German law. Assuming that the German law is as alleged, the liability of the defendant is not based upon the fact that he was a foreign executor, but is founded upon the contention that, as an individual having estate property in his possession, he is liable to the plaintiff. This cause of action is properly alleged (Horn v. Vasen, 263 App. Div. 669).

The prayer for relief, however, appears to be ambiguous. The defendant should only be required to render an account to the extent heretofore set forth and the plaintiff should serve an amended complaint seeking relief as hereby limited.

There appears to be no reason to compel the plaintiff to bring in the additional persons as sought by the defendant since the rights of the parties may be completely adjudicated in this action. Plaintiff is given leave to serve an amended complaint within twenty days after the service of a copy of the order to be entered hereon with notice of entry. Settle order.  