
    William P. Fogarty, Plaintiff, v. Sarah A. O’Reilly, as Executrix, Etc., et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1907.)
    Jurisdiction — Jurisdiction of particular courts — Concurrent jurisdiction— Supreme and Surrogates’ Courts.
    Parties — Plaintiffs — Trustee of express trust — When office of trustee is vacant.
    Trusts — Enforcement and protection of trust and remedies of beneficiary — Persons entitled to enforce — Beneficiaries.
    Former adjudication — Adjudications operative as bar or as conclusive evidence — Eule that former judgment must have been on the merits — Judgment of dismissal.
    The Supreme Court has jurisdiction of an action brought against the executrix of a deceased testamentary trustee and other parties in interest for an accounting of the rents of. certain real property in the possession of the trustee, as such, during his. lifetime, which rents were payable in part to plaintiff as a beneficiary of the trust.
    No trustee having been appointed in the place of the deceased trustee, plaintiff was entitled to maintain such action to procure an adjustment of the rights arising under the trust.
    The complaint, after setting forth the will under which the trust was created, alleged that of the three trustees named in the will one never acted as such and the others are dead; that, in a proceeding in Surrogate’s Court for an accounting of the moneys sued for herein, the defendant executrix interposed a defense that the deceased trustee was in possession of the premises from which the rents were derived under a claim- of title in hostility to the trust, a defense which served to take the case without the jurisdiction of the surrogate, and that the appeal to the Appellate Division resulted in a dismissal of the proceedings; that this deceased trustee received the rents but except as to a certain portion had failed to pay over to the persons entitled “ and converted the same to his own use".”
    Held, that the complaint stated facts sufficient to, constitute a cause of action; that the allegation that the deceased trustee converted the rents to his own use did not make the .action one for conversion; that a contention that the complaint disclosed a defense of estoppel by former adjudication in the allegation that the proceeding for an accounting in the Surrogate’s Court was dismissed was untenable, there being no presumption that such dismissal was upon the merits, the complaint containing no suggestion that the merits of an asserted right to an accounting were determined.
    Issues of law upon demurrer to complaint.
    Franklin H. Mills, for plaintiff.
    Edward W. S. Johnston, for defendant demurrant.
   Bischoff, J.

The action is brought against the personal representative of a deceased trustee, with a joinder as defendants of other parties in interest, for an accounting of rents of certain real property in the possession of the trustee, as such, during-his lifetime, which rents were payable in part to the plaintiff as a beneficiary of the trust.

The complaint sets forth the will of Patrick A. Fogarty, under which the trust was created; and it is alleged that of the three trustees named in the will one never acted as such and the others are dead; that, in a proceeding instituted in the Surrogate’s Court for an accounting of these moneys, the defendant executrix interposed the defense that the deceased trustee was in possession of the premises from which the rents were derived under a claim of title in hostility to the trust, a defense which served to take the case without the jurisdiction of the surrogate, and that an appeal to the Appellate Division resulted in the dismissal of the proceedings ; that this deceased trustee received the rents but, except as to a certain portion, had failed to pay them over to the persons entitled, and converted the same to his own use.” The defendant executrix demurs to the complaint upon the ground (1) that the court has not jurisdiction of the subject of the action; (2) that the plaintiff has not. legal capacity to sue, in that any cause of action growing out of the alleged facts existed in the trustee of the trusts contained in the last will and testament and codicil of the said Patrick A. Fogarty, deceased, or in the substituted trustee to be appointed by the Surrogate’s Court of the county of ¡New York and does not exist in the plaintiff; (3) that there is a defect of parties plaintiff, and that William P. Fogarty, as administrator with the will annexed of Patrick A. Fogarty, deceased, is a necessary party plaintiff; (4) that there is a •defect of parties plaintiff, in that the trustee under the trust- or trusts created by the will of Patrick A. Fogarty, deceased, is a necessary party plaintiff, and (5) that the complaint does not state facts sufficient to constitute a cause of action.

Upon demurrer to the complaint in an earlier action between these parties for the same relief, I had occasion to consider certain questions now raised; and I reached the conclusion, to which I adhere, that the failure to cause the joinder of a substituted trustee of this trust was not a defect; also that the questions at issue related wholly to property set apart to the trustee and did not call for the joinder of the personal representative of the testator under whose will the trust was created. Fogarty v. O’Reilly, N. Y. L. J., Nov. 29, 1905. I sustained the demurrer in that action upon the ground that, in the absence of circumstances showing the necessity of resorting to a court of equity, jurisdiction of the action would not be entertained, since the Surrogate’s Court could, apparently, afford all necessary relief; but the averments of the complaint before me supply what was then absent. The facts alleged foreshadow the main issue of the case — the defense of title — and disclose a situation which, in all probability, must render a resort to the Surrogate’s Court abortive, since with this defense the surrogate’s jurisdiction would fall. Matter of Fogarty, 117 App. Div. 586. Needless to say, this court must-determine the issue of law as to the question of jurisdiction without waiting for the interposition of an answer; otherwise, the plaintiff in such a case as this must be continuously remitted to successive proceedings in the Surrogate’s Court, foredoomed to dismissal -at the defendant’s election, and there is no rule of policy which requires such a result. The special circumstances alleged, therefore, suffice for the exercise of jurisdiction by this court. Matter of Fogarty, supra,.

As to the plaintiff’s capacity to sue, it is quite true that the primary right of collection of these rents would reside in a trustee appointed in the place of the deceased trustees; but, wdiere there is no trustee, a party, substantially and beneficially interested, may come into equity and procure an-adjustment of the rights arising out of the trust, the performance of which is thus dictated and controlled by the court. „

In such a case the appointment of a new trustee is not important, since it is a matter of no moment whether one or another of two possible plaintiffs — the' cestui que■ ti'ust or the new trustee — sets the court in motion, as was held in Ettinger v. P. R. & C. Co., 142 N. Y. 189; and within the principle of this authority the plaintiff’s right to maintain the action is not well open to question.

The argument against the sufficiency of the complaint proceeds upon some assumed technicalities which call for but little discussion. The statement that the deceased trustee converted these rents to his own use does not impress the action with the character of a suit for conversion in any aspect, even assuming that if it did the pleading would be insufficient in substance. The fapt that this trustee did convert ” the funds is material so far as it negatives the presumption, which the demurring party seeks to draw, that the deceased cotrustee had equal possession; but the complaint is framed for an accounting, as demanded, the right to which form of relief is determined by the facts surrounding the possession of the moneys and-by strict fiduciary relation which existed. Equally futile is the contention that the pleading discloses a defense of estoppel by former adjudication in the averment that the proceeding for an accounting in the Surrogate’s Court was dismissed. There is no presumption that the dismissal was upon the merits, a fact which, for the purposes of a bar, must affirmatively appear from the record (Patchen v. D. & H. C. Co., 62 App. Div. 642); and this complaint certainly contains no suggestion that the merits of an asserted right to an accounting were determined.

The demurrer is, therefore, overruled upon every ground stated, with costs, with leave to defendants to plead over on payment of costs within twenty days.

Demurrer overruled, with costs, with leave to defendants to plead over on payment of costs within twenty days.  