
    Oliver M. Arkenburgh, Individually and as Executor, etc., of Robert H. Arkenburgh, Deceased, Appellant, v. James Wiggins and Others, Respondents, Impleaded with Edward J. H. Tamsen, Sheriff of the City and County of New York.
    
      Misjoinder of causes of action —one accruing to a testator with one accruiüg to his eccecutor—some affecting only part of the defendants—surrogate’s decree.
    
    A cause of action which accrued to a testator cannot be united with another which accrued to his personal representatives after his death.
    Where some of the parties to an action are interested in their different individual or representative capacities in one of the causes of action set forth in the complaint, and some of them in another cause of action, and where all of the defendants are not interested in all the causes of action therein set forth, the complaint presents a misjoinder of causes of action.
    Where the decree of a surrogate has provided that payments out of a fund in the hands of executors shall be made only upon their joint check, if one of the executors unjustly refuses to unite with his fellow in paying a claim which is a proper charge against the estate, the latter may apply for a modification of the decree, and will be granted" relief in this respect.
    Appeal by the plaintiff, Oliver M. Arkenburgh, individually and as executor, etc., of Robert H. Arkenburgh, deceased, from a judgment of the Supreme Court in favor of the defendants, James Wiggins and others, entered in the office of the clerk of the county of New York on the 22d day of August, 1896, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendants’ demurrers to the complaint, and also from' an order entered in said clerk’s office on'the 21st day of August, 1896, granting to the defendants an additional allowance of costs.
    This appeal was transferred from the first department to the second department.
    
      Robert F. Little and Frederick M. Evarts, for the appellant.
    
      Charles Edward Souther, for the respondents.
   Goodrich, P. J.:

The plaintiff, individually and as executor of the last will and testament of Robert H. Arkenburgh, brings this action against his co-executrix, Eliza J. Arkenburgh, the widow, and against the children of the decedent, for an accounting, distribution and settlement of the estate since January 4, 1894, at which date an accounting was had before the surrogate of Rockland county, and also to compel the payment of the plaintiff’s indebtedness to counsel for legal services rendered to and disbursements incurred by him as executor, and for the assignment out of Robert H. Arkenburgh’s share of the estate of the amount of a debt alleged to be due from him to the estate on a contract made in the lifetime of the decedent.

In July, 1894, the surrogate made an order directing the executors to deposit in the Farmers’ Loan and Trust -Company all estate moneys then or thereafter to come into their hands. About $70,000 was so deposited, part of which has been distributed, but there remains a balance of about $25,000, which is the subject of this action. This fund, by the order of the surrogate, was payable only on the joint check of the two executors.

The plaintiff claims that, under section 2730 of the Code, as amended in 1895, and which provides as follows: “ In all" cases such allowance must be made for their (the.executors’) necessary expenses, actually paid by them, as appears just and reasonable,” the surrogate has no authority to. order any payments of the counsel fees, expenses and necessary disbursements of pending litigation, and that, as this is a burden and risk upon the executor, who must advance the money before he can apply to the surrogate for reimbursement, the only remedy is an action in the Supreme Court for an accounting, distribution and settlement of the estate.

The demurrer specifies, among other objections, that there is a misjoinder of parties plaintiff in that the plaintiff sues individually and as executor, the causes of action have been improperly united and that the complaint does not state a cause of action.

The result of plaintiff’s contention, if successfully established, would be to withdraw from the surrogate, in a large class of cases, the supervision of testamentary transactions, and impose upon the Supreme Court, from time to time, and as often as executors deem it necessary, absolutely and at their discretion, a suit for accounting.

It is alleged in the complaint that an action was commenced by the plaintiff individually against Robert H. Arkenburgh, in which a warrant of attachment was issued to Sheriff Tamsen aiid served on Eliza J". Arkenburgh, as executrix, although it is alleged that Robert had assigned to Eliza "individually all his distributive share in the estate and also all claims of his against the estate. This is the only interest which the sheriff has in the litigation, and the only reason assigned for making him a party defendant.

The complaint also alleges that Robert was, at the death of the testator, indebted to him, and, therefore, to the estate in the sum of $596.25, and that said indebtedness should be charged against Robert in reduction of his legacy under the will.

Another allegation is that the defendant William H. Arkenburgh was, at the death of the testator, indebted to him, and, therefore,' to .the estate* in the sum of $579.85, and that said indebtedness should be charged against William in reduction of his legacy under the will.

The General Term of the first department, in the case of Bingham v. The Marine National Bank (41 Hun, 377), cites and reviews authorities upon this question and sums them up by saying : “ What they have chiefly determined is, that a cause of action which had accrued to the testator or intestate cannot be united with another accruing to the personal representatives after his decease.”

This would seem to be decisive against the plaintiff’s joinder of causes of action, and this whether the causes are stated separately or commingled in one set of general allegations. ' Some of the defendants, in their different individual or representative capacities, are interested in one of the causes of action and some of them in another, but not all of the defendants are interested -in all the causes of action. Thus, Robert H. Arkenburgh and William H. Arkenburgh are solely interested to defend the cause of action stated against them, as arising out of debts alleged to have been due from them, respectively, to the testator ■ at the time of his death, and to charge the same against their share of the estate, while no other defendant has any interest therein. And this condition is not changed by the allegation that this indebtedness should be charged against them in reduction of their legacy under the will, in respect of which it is alleged the surrogate is without jurisdiction.

Nor do we see any reason why the plaintiff may not apply to the surrogate for a new accounting, if occasion has arisen for an accounting, as his complaint alleges, nor why he may not apply for a modification of the order requiring payments out of the fund to be made solely upon the joint check of the two executors, if his co-executrix unjustly refuses to unite with him in payment of claims which are a charge upon the estate, under section 2412 of the Code of Civil Procedure, by which ample powers are conferred upon the surrogate to afford any relief in that respect to which the plaintiff is entitled.

There is also an appeal from the order for an additional allowance of $500. Under all the circumstances, we think, the judgment. and order should be modified so as to reduce the allowance to $250.

All concurred in the result.

Judgment modified by reducing the allowance to $250, and, as modified, affirmed, without costs.  