
    William Elias, Elsa Kroehle, and Catherine Elias, as Trustee under the Last Will and Testament of Henry Elias, Deceased, and as General Guardian of Katie Backer, an Infant, Appellants, v. Edward Schweyer, Individually and as Trustee under the Last Will and Testament of Henry Elias, Deceased, Respondent, Impleaded with Others.
    
      Action by beneficiaries to remove a trustee for misconduct in Ms usé of brewing stock held by the trust fund and to home him account for profits realized by Mm from business with the brewing company—demurrer.
    
    An amended complaint, in an action brought by the beneficiaries of a trust fund, in part consisting of stock of a brewing company, against the trustee of the fund, both in his individual and representative capacities, alleged, among other instances of the trustee’s misconduct, that, having obtained control of the brewing corporation by the use of the trust stock, lie procured his own election as its president and the passage of resolutions giving him a salary and enabling him to . sell malt to the company at prices greatly in excess of the market rates, and stated, as a reason for having made the brewing company a party defendant, that the trustee had by Ms answer insisted that the brewing company was a necessary party, and demanded judgment that the trustee account as trustee to the plaintiffs for the salary and profits which he had received from the brewing company.
    
      Held, upon the hearing of a demurrer interposed to the complaint, that it stated " only,a single cause of action, viz., for the removal of the trustee for misconduct, and properly asked, as an incident thereto, that the defendant account to the plaintiffs as cestuis que trust for profits made by him out of the trust fund;
    That the complaint did not seek to enforce the right of action which the corporation or its stockholders had to compel the trustee to account to it for the salary and profits which he had improperly received.
    Van Brunt, P. J., dissented.
    Appeal by the plaintiffs, William Elias, Elsa Kroehle, and' Catherine Elias, as trustee under the last will and testament of Henry Elias, deceased, and as general guardian of Katie Backer, an infant, from an interlocutory judgment of the Supreme Court in favor of ■the defendant, Edward Schweyer, individually and as trustee, etc., of Henry Elias, deceased, entered in the office of the clerk of the county of Hew York on the 18th day of Hovember, 1897, sustaining the said defendant’s demurrer to the amended oomplai
    The demurrer was upon the grounds (1) That several causes of action have been inrproperly united ; (2) that the amended complaint does not state a cause of action against the defendant Schweyer, in so far as it seeks to compel him to account for money withdrawn by him from the Henry Elias Brewing Company for salaries, and for profits earned by him upon the sale of malt to the company; (3) that the complaint does not state a cause of action against the said defendant, in so far as the plaintiffs seek to compel him to account to the Henry Elias Brewing Company.for salaries received by him, and for profits 'madejby him in the sale of malt to the company-; (4) that the complaint does not state a cause of action against the defend- ' ant Schweyer; (5) that there is a misjoinder of parties plaintiff, in that none of the plaintiffs other than Catherine Elias, as trustee, is capable.of maintaining any of the alleged causes of action set forth in the complaint, except that for the removal of the defendant Schweyer as trustee. , ' .
    
      
      Louis Marshall, for the appellant.
    
      Robert E. Deyo, for the respondent.
   O’Brien, J.:

The question presented below and here is as to whether there is one, or more than one, cause of action alleged in the complaint. If more than one', it is clear that they cannot be united, because they do not “ affect all the parties to the action,” as required by section 484 of the Code of Civil Procedure. It is insisted by the appeL lants that but one cause of action is alleged, namely, to obtain the removal of Schweyer as trustee and to compel him to account for moneys which he has improperly received'from the Henry Elias Brewing Company, and which he secured to himself by acting in violation of his duty as trustee.

Apart from the allegation of misconduct as trustee, which, it is claimed, would justify his removal, there are others directed to; showing that, having as trustee obtained a position where he could enforce his views upon the brewing company, he, by virtue of the controlling interest which, as trustee, he had in the stock of the company, elected a board of directors to suit himself, and had himself chosen as president, and while so acting had resolutions passed giving him a salary and enabling him to sell malt to the company at prices greatly in excess of the market rates.’ And for the moneys and profits thus received the plaintiffs seek to make him account as trustee.

On the other hand it is insisted that the construction to be given to the complaint is, that not only is it here sought to obtain the removal' of Schweyer as trustee and compel him to account, but it is also sought to enforce the right of action which the company has to compel him to account to it for the salary and profits which he improperly received. The prayer for relief, which, in cases of doubt, can be resorted to for the purpose of determining the nature of the- complaint, asks that the demurring defendant account, not to the brewing company, but to the plaintiffs in the action, for what he has received from the company; and the reason for making the brewing company defendant appears by the 18th allegation of the complaint, which is as follows:

Eighteenth. The defendant Schweyer has heretofore insisted in this- action, by the answer interposed herein, that the defendant The Henry Elias Brewing Company is ■ a necessary party thereto, and said defendant company has or claims an interest in the property which is the subject-matter of said trust fund, and in the salaries collected and profits made by the defendant Schweyer, as herein alleged, and the plaintiffs hereby make the said corporation a defendant herein, to the end that the defendant Schweyer account herein for the aforesaid salaries received and collected by him from the said corporation, and the profits made by him in the sale of malt by him to it, and that' they may have the relief herein prayed for.”

It thus appears that it was because the defendant Schweyer insisted on the presence of the brewing company that the latter was made a party defendant; and as the complaint does not ask to enforce any demand as against the defendant the brewing company, there is no basis for claiming that the plaintiffs were here asserting on behalf of the company a cause of action as against the defendant Schweyer. We think that the fair reading of the complaint is consistent with the construction that it was intended to set forth but one cause of action, namely, for the removal of the trustee, and, as incidental thereto, to compel him to account. In that connection, the acts relating to his having used the stock, which was part of the trust fund, for the purpose of getting possession of the brewing company, and other acts, were alleged as reasons why he should be' removed as trustee, and the demand for his accounting as trustee to the cestuis que trust for the moneys which, in the shape of profits, he realized from his trust relation contrary to law follows. The plaintiffs. are not seeking to enforce any rights as stockholders in their own behalf or on behalf of other stockholders, or of the corporation ; but their interest in any accounting is based upon the fact that they are the cestuis que trust and entitled to have the trust properly administered for their benefit, and that they can' compel the trustee to account for profits which he may have made in the use of the trust property. The extent to which they are entitled to share in such profits may or may not be correctly stated ; and when the facts appear they may or may not be entitled to any portion of the items which are set forth as having been received by the trustee as salary or from the sale of malt.. But even if it could be con.cluded that they were in error as to the extent to which they could -compel him to account as trustee, or as .to the share which they should receive upon such accounting, this would not render the complaint open to the objection by demurrer that there was an improper joinder of causes of action. We regard it as settled law that in an action for the removal of a trustee for misconduct, the plaintiff as incidental thereto can demand an accounting, and that was all that was here done.

There are items for which the plaintiffs demand an accounting, some of which may or may not be allowed, or may be proper only in an action by the company. Even though this. latter were thp case it would show that the plaintiffs, in their cause of action, asked for too much relief, and not that they sought to maintain one cause of. action as oestuis. que trust and another on behalf of the company. Our conclusion is that, reading the complaint as a whole, it was intended to state, and states, a single cause of action in which the removal of the defendant Schweyer as trustee, and as incidental thereto an accounting, are sought.

The judgment sustaining the demurrer should, therefore, be reversed, with costs, but with leave to the defendant to withdraw demurrer and answer upon payment of costs.

Patterson, Ingraham and McLaughlin, J'J., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting):

I dissent upon the ground that there is a misjoinder of causes of action.

Judgment reversed, with costs, with leave to defendant to withdraw demurrer and answer upon payment of costs in this court and in the court below.  