
    Congregation Shomri Laboker Anshe Sakoler, Respondent, v. Abraham Sindrack and Others, Appellants.
    
      Mineral expenses—equitable assignment by a next of kin of Ms interest in the estate —parties to an action to enforce it.
    
    Where the brother and only next of kin of a decedent, who died, leaving a deposit in a bank, assigns in writing a part of it to a religious association in consideration of its burial of the deceased, the instrument is enforcible by action as an equitable assignment of the interest, in the fund, of the brother as next of kin of the deceased, to the extent of the claim of the religious association.
    The assignor and the administrators of the deceased, holders of the fund, are necessary and proper parties to an action brought to enforce such obligation.
    Appeal by the defendants, Abraham Sindrack and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of October, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling their demurrer to the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 22d day of October, 1896, directing the entry of said judgment.
    This appeal was transferred from the first department to the second department.
    
      Charles I. Schampain, for the appellants.
    
      Abraham, H. Sarasohn, for the respondent.
   Cullen, J.:

The complaint alleges that one Morris Sindrack died, leaving his brother, the individual defendant Abraham Sindrack, his only next of kin, and possessed of a deposit in a savings bank exceeding in amount the sum of eight hundred dollars; that the plaintiff contracted with the defendant Abraham Sindrack for the burial of Morris, and that in consideration therefor, Abraham agreed to pay the sum of eighty dollars and executed an assignment in writing whereby he transferred and assigned to the plaintiff eighty dollars out of the amount on deposit in the savings bank; that the plaintiff thereupon buried the deceased ; that thereafter letters of ad ministration on the estate of the deceased were issued to Abraham Sindrack and David Friedman; that in fraud of the plaintiff’s rights, the defendants, as administrators, drew out the entire amount on deposit in the bank and refused to pay the plaintiff the sum of eighty dollars agreed to be paid it for the burial of the deceased; that the plaintiff has no adequate remedy at law because the defendant Abraham Sindrack is without any financial responsibility. The plaintiff demanded judgment, that a trust be impressed upon the money in possession of the defendants drawn from the savings bank to the extent of eighty dollars, and that that sum be paid to the plaintiff. To this complaint the defendant Abraham Sindrack, individually, and both defendants, as administrators, interposed several demurrers, on the ground that several causes of action are improperly united. From an interlocutory judgment overruling such demurrers this appeal is taken.

It is not necessary to say whether the plaintiff could have maintained an action at law against the administrators individually on its claim for services in the burial of the deceased. As a general rule, such a claim can be maintained where the administrator-has received sufficient assets to discharge it. (Rappelyea v. Russell, 1 Daly, 214; Patterson v. Patterson, 59 N. Y. 574.) Whether the action would lie in this case, as the services were rendered not on the credit of the estate, but on that of the brother individually, may be involved in some doubt. (Lucas v. Hessen, 17 Abb. N. C. 271.) If, however, it were conceded that the plaintiff could sue at law the defendants, individually, it does not follow that it is limited to that remedy. The defendant Abraham Sindrack assigned to the plaintiff eighty dollars out of the savings bank deposit. Of course the plaintiff is all wrong in its claim that the title to this money was in the brother as next of kin, and that its withdrawal by the administrators was an act in fraud of the plaintiff’s rights. Nevertheless, the instrument was operative as an equitable assignment of the brother’s interest as next of kin in the estate of the deceased to the extent of plaintiff’s claim. The action was, therefore, properly brought to ■establish the assignment and to enforce the payment by the administrators of the claim out of any distributive share to which Abraham might be entitled upon closing the estate. To such an •action the assignor and the administrators who held the fund were both necessary and proper parties'. A good cause of action is stated against each, and it is but a single cause of action to establish plaintiff’s interest in the fund.

The judgment appealed from should be affirmed; but, as the complaint is drawn singularly inartificially and possibly misleading, the affirmance should be without costs.

All concurred.

Interlocutory judgment affirmed, without costs.  