
    Annabella McCool Kaughran, Respondent, v. Thomas F. Kaughran and Margaret Donnelly, as Executors of and Trustees under the Last Will and Testament of John E. Kaughran, Deceased, Defendants. Margaret Donnelly, as Trustee under the Last Will and Testament of John E. Kaughran, Deceased, Appellant.
    
      A party made a defendant, both as executor and as trustee, may answer in one capacity and, demur in the other.
    
    Where a person is sued as executor of a will and as trustee of a trust created thereby, upon a claim for a balance of money deposited by the plaintiff with the testator, and no cause of action is stated against such defendant as trustee, such defendant may serve an answer in his capacity as executor and a demurrer in his capacity as trustee.
    Appeal by - the defendant, Margaret Donnelly, as trustee under the last will and testament of John E. Kaughran, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of May, 1902, striking out a demurrer interposed by said defendant to the complaint.
    
      John E. Donnelly, for the appellant.
    
      William P. Burr, for the respondent.
   Patterson, J.:

This action is at law upon a money demand for a specific sum, which the plaintiff claims as a balance of an amount received by the defendants’ testator, to be used for a particular purpose, and which balance having been unexpended by the testator was, at the time of his death, justly 'due and owing by him to the plaintiff. It is alleged in the complaint that the defendants are the executors of the last will and testament of the testator and also trustees of a trust therein and thereby created. Margaret Donnelly, one of the executors and trustees, interposed an answer as executrix and a demurrer as trustee. They were separate pleadings, but they are not set out in the record before us. The plaintiff moved for an order striking out either the demurrer or answer, or to compel the defendant Margaret Donnelly to elect whether she would rely upon her demurrer or her answer as a sole pleading to the complaint. The motion was opposed, but the Special Term struck out the demurrer interposed by the appellant as trustee on the ground that but one cause of action is set out in the complaint and that no occasion appears for the demurrer of Donnelly as trustee.

Striking out pleadings is a matter regulated by the Code of Civil Procedure, and our attention has. not been called to any provision therein which authorizes the striking out of this, demurrer on the ground stated by the court below. There is but one cause of action in the complaint, but it is against defendants, each sued in two entirely different capacities. Primarily, the claim asserted in the complaint is one against executors, and an issue of fact arising on the complaint could only be framed by the interposition of an .answer. There is nothing on the face of the complaint to indicate liability of Margaret Donnelly as a trustee, nor anything to charge .a liability upon a trust fund or estate. An issue of law may be raised by demurrer. It is the appropriate pleading, and where the trustee is sought to be charged as such it is competent to raise the question of the insufficiency of the complaint by a demurrer. The two relations in which the defendant Margaret Donnelly stands to the subject-matter of the action are as independent as if the suit had been brought against her both individually and in a representative capacity. She might be liable in the former and entirely free from liability in the latter relation. While it seems that a defendant is not entitled as matter of right to serve both a demurrer and an answer to the same cause of action (Cashman v. Reynolds, 123 N. Y. 138), yet where a suit is so framed that the same defendant is .sought to be charged in two utterly distinct relationships, in one of Avliich liability dependent upon the facts proved may exist, and in the other as matter of law liability does not and cannot exist, separate pleading appropriate to each situation is not prohibited.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin, Hatch and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  