
    Sarah L. Myers et al., Resp’ts, v. Thomas Bolton et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 18, 1895.)
    
    Tenants in common—Liability inter se.
    Lessees who, while in possession of the demised premises, become ten-, ants in common thereof with other parties, must account to such parties for their portion of the subsequently accruing rents.
    2. Contract—Construction.
    Where the owner of land leases the right to cut ice from a pond thereon and then leases the land to another person without any mention of the previous lease, and the latter lessee, who was the lessor’s agent to collect, rents, accounts for the rents paid by the former lessee, such course of dealing establishes the fact that the pond was not intended to be included in the subsequent lease.
    3. Accounting—When action lies.
    An action for the recovery of such a sum of money as may be found due on an accounting will not be dismissed upon the trial on the ground that an action at law might have been maintained for the recovery of the money demanded.
    Appeal from a judgment in favor of plaintiffs.
    
      Alex. Thain, for app’lts; James R. Marvin, for resp’ts.
   Follett, J.

This action was begun April 29, 1889, to compel the defendants Thomas Bolton, Henry B. Bolton, and William H. Birchall, -to account for moneys collected and received from property owned in common by the parties to the action. John W. Bolton and Catharine E. Bolton were joined as defendants because they refused to be joined as plaintiffs, but no judgment was demanded or rendered against them. All of the defendants served a joint answer, and the referee, in his decision, stated the accounts as between all of the parties to the action, finding that Sarah L. Myers, Mary A. Littlewood (plaintiffs), John W. Bolton, Catharine E. Bolton (two of the defendants), were each entitled to recover of Thomas Bolton, Henry B. Bolton, and William H. Birchall $3,826.49, with interest from August 1, 1894. A judgment was entered in favor of the plaintiffs for the amount found due them, but no judgment has been entered in favor of John W. Bolton and Catharine E. Bolton, or either of them. All the testimony in respect to the accounts was given by Thomas Bolton and Henrv B. Bolton, two of the appellants. There was no conflict therein, and the appellants are not in a position to urge that the referee should not have believed the evidence. The only other testimony related to the value of legal services rendered upon.thé retainer of the defendants in matters arising ont of the estate, and was given by four attorneys, three of whom were the attorneys and counsel who conducted the trial, and whose names appear on the briefs in this court. While many of the referee’s findings of fact were excepted to by the appellants, none of them were challenged on the argument or are challenged in the brief, except that part of the sixth by which it is found that Thomas Bolton and Henry B. Bolton received $1,000 from William H. Birchall for the use of a house rented to him by them. Thomas Bolton testified that the Bronx Company, hereinafter mentioned, had an account with Birchall; that the rent was charged to him in that account, and credited to the estate. Under this evidence the referee correctly found that the rent had been paid by Birchall, and had passed into the hands of the three appellants who composed the firm of the Bronx Company.

The finding of fact must be accepted by this court aá supported by the evidence. In 1880, Ann Bolton was the owner of a tract of land at Bronxdale, which was divided by the Bronx river; the land on the west side being in the city of New York, and that on tho east side in the town of Westchester. On this land were valuable mills, used for the purpose of manufacturing. She was also the owner of several houses at Bronxdale. Prior to March, 1880, she leased to A. C. Chandler the right to cut ice from a pond on her land, for $600 per year. The lessee enjoyed the privilege and paid the stipulated rent until July 9, 1889. In March, 1880, Thomas Bolton, Henry B. Bolton, and William H. Birchall were partners under the firm name of the Bronx Company, and March 1, 1880, Ann Bolton leased to the firm a portion of the tract of land divided by the Bronx river for five years from March 1, 1880, with the privilege of ten years, for the annual rent of $4,500, payable yearly. The pond from which the privilege to cut ice had been previously granted to Chandler was part of the premises leased to the company, but from the date of the lease to the death of Ann Bolton the Bronx Company collected the rent from Chandler, and credited it to Mrs. Bolton. September 29, 1882, Ann Bolton died, seized of all this property, 'and leaving Thomas Bolton, Henry B. Bolton, John W. Bolton, sons, Catharine F. Bolton, Emily B. Norris, Sarah L. Myers, and Mary A. Little wood, daughters, her only heirs and next of kin. William H. Birchall, a nephew, had been adopted by her, and reared in the family as her son. She left a will, by which she bequeathed to her daughter Catharine her household furniture and clothing, devised to Henry B. Bolton a house and lot, and bequeathed $1,500 to her executors, to be invested, and the income to be paid to the trustees of a church. She devised and bequeathed the remainder of her estate to her seven children and to her adopted son, to be divided equally among them. She nominated her sons Henry B. and Thomas Bolton, as executors, giving them power' to sell and convey any or all of her real estate at public or private sale. November 20, 1882, the will was duly admitted to probate by the surrogate’s court of the county of Westchester, and letters testamentary thereto were issued to the executors therein nominated who immediately entered upon the discharge of their duties, and have ever since continued to act as executors. From th.e death of the testatrix until July 9,. 1889, one of the houses left by her was rented to and occupied by William H. Birchall for $150-per year. In 1887, Emily B. Norris died intestate, leaving no descendants, but leaving a husband, to whom letters of administration on her estate were granted October 11, 1889, and November 22, 1889, he assigned his wife’s share of the rents arising from the estate of Ann Bolton to Thomas Bolton and Henry B. Bolton. On the 9th of July, 1889, the greater part of the real estate left by the testatrix was condemned by the ci¡ty of New York, under chapter 522 of the Laws of 1884, for the pur-' pose of establishing Bronx Park and Parkways, for which $267,-324.40 damages was awarded, paid, and divided among the devisees according to their respective interests. In April, 1887, four of the buildings on the property leased to the Bronx Company were destroyed by fire, on account of which $28.000 was received by the company from'insurance companies for the loss. Thereafter the firm erected new buildings at a cost of $5,501.05 more than the sum received for insurance.

Upon the death of the testatrix the title to her real estate vested in the eight devisees, subject to be divested by the execution of the power of sale contained in the will; and until the power was executed the deviseés were entitled to the possession of the realty, subject to then existing leases,' and were entitled to collect the rents from the lessee, and receive the profits from that portion not leased for their own use. The executors, as such, had no power to collect the rents accruing after the death of the testatrix on the leases made by her, orto receive the income of the portion of the realty not held under such leases. In re Bolton, 5 Misc. Rep. 475; Clift v. Moses, 44 Hun, 312 ; 7 St. Rep. 691; affirmed, 116 N. Y. 144; 26 St. Rep. 405. The Bronx Company was the agent of the testatrix in her lifetime for the collection °of the rents from the occupants of the property, and was accustomed to credit her in account with rents due from the firm. After her death the company credited “Ann Bolton’s Estate” with the rents due'from. the firm in an-account kept with the estate, and also credited to the estate in that account the rents collected from other tenants occupying the land of the estate. This seems to have been done by the acquiescence'of all the devisees. In this account the firm charged the estate with taxes, insurance, and other expenses paid. By this course of dealing the members of the firm became liable to the other devisees for their just proportion of all rents collected after the "death of the testatrix, subject to the legal charges for moneys paid out. The amount due the estate of Ann Bolton for rents collected by the firm prior to her death belonged to her executors, who have accounted therefor in the surrogate’s court. Such rents are not involved in this suit. The appellants insist that the accounting should have been' upon the theory that the parties to this action were tenants in common, and that none of them was liable to the others for use and occupation of the realty. The error of this position arises -from the fact that the Bronx Company occupied a large share of the realty from the death of the testatrix to July 9, 1889, when it was taken by the city, under a lease by which the firm agreed to pay rent at the rate of $4,500-per year. The individual members of this firm were not in possession as tenants in common of the realty covered by this lease, but the firm was in possession as tenants upon a stipulated rent, and the members of that firm must account to the owners of the property upon the rules applicable to cases between landlord and tenant. As tenants holding under a lease, the firm cannot charge for improvements made by it, nor for expenses incurred for the restoration of the buildings in excess of the amount received for insurance. Whether the policies from which the appellants received $28,000 insured the interests of all the owners or only the interest of the firm does not appear, but that questioti. is not material, because appellants have not been charged with that sum, through credited with premiums paid. The remainder of the realty not covered by the lease to the Bronx Company was leased to other persons, the' tenants paying rent at stipulated rates,, which was collected by the company. For such rents the defendants are liable to account to their cotenants upon the principles applicable to cases between tenants in common.- The case does hot Show that the appellants made any .improvements upon the property not covered by their lease, or that they expended any sums on account thereof which were not credited to them by the referee.

It is urged that the three appellants? should not have been charged for rents severally collected by the two executors; Thomas and Henry B.' Bolton. This would be an unanswerable proposition had it not appeared by the evidence of the defendants themselves that the amounts so collected were paid over to the firm of which the three were members. The firm having received this money, all the partners, knowing the source from which it came, are liable to account therefor to the persons entitled thereto.

It is urged that Birchall should not have been charged for the rent of the house occupied by him. He was not directly, as an individual. He had agreed to pay a stipulated rent for the house, and it was credited in the account of the firm with the estate "as received. Birchall is liable to his cotenants for rent which he had agreed to pay for any part of the property.

It is urged that the referee erred in charging the appellants with the amount which they credited the estate as received from Chandler, upon the ground that the pond from which the ice was cut was on the land leased to the Bronx Company. Although the appellants’ lease did, in terms, cover the pond, it is plain, from the course of dealing between Ann Bolton in her lifetime and the firm, that it was understood between them that the rent due from Chandler did not belong to the company, but to her; and after her death the rént was collected by the firm from Chandler, and credited to the estate, thus clearly showing that the rent from Chandler did not belong to the Bronx Company.

The appellants insist that the court erred in not allowing them the amount which was found due to the executors from the estate of the testatrix on their accounting in the surrogate’s court. To this there are several answers: (1) The amount found due the executors on the accounting was not established on the trial of this action. (2) That amount, whatever it was, is not a claim in favor of the three appellants,- but it is a claim of two of the appellants in their representative capacity. (3) This independent claim of the executors against the estate is not set up in the answer in this action as a counterclaim.

There is no reason for dismissing the complaint against Catharne E. and John W. Bolton. No claim was made against them, and they were.made parties defendant simply because they would riot join as plaintiffs. They filed no exceptions, and have not appealed.

It was not error to refuse to credit the appellants with the $1, 819.63.paid by Thomas Bolton, March 31, 1887, on the bond held by Sarah L. Bolton, for this sum had been charged in the executors’ account" rendered in the surrogate’s court, and had there been allowed to them.

It appears that one Gfirsch held a mortgage upon three houses belonging to the estate, which was given by Ann Bolton in her lifetime. One of these houses was devised to Henry B. Bolton, who, and Thomas Bolton, agreed between themselves that $1,500 of the principal sum should be charged upon Henry’s house and $500 should be charged, upon the premises devised to the eight devisees. This mortgage had been paid by the firm, and charged on its books, three-fourths of the sum paid to Henry B. Bolton and one-fourth of it to the estate, according to the agreement; and the referee credited the appellants' with the amount charged by them against the estate. In this there was'no error.

After issue was joined in this action, the parties stipulated that the trial involved the examination of a long account, and that it be referred to William M. Hoes to hear and determine, and an order was entered. On the trial the defendants moved that the complaint be dismissed on the ground that the cause of action set out therein was legal, and not equitable, ones. An action for the recovery of such a sum of money as may be found due on an accounting will not be dismissed upon the trial on the ground that an action at law might have been maintained for the recouery of the money demanded. An action for the recovery of this sum, either at law or through an accounting, required the examination of a long account, and could not be tried before a jury. Under the reformed procedure-such actions are not dismissed because erroneously named, or because allegations appropriate to a legal cause of action are contained in the complaint in a suit for equitable relief.

The action seems to have been carefully and fairly tried and disposed of by the learned referee, and we-find no error in the record calling for the reversal of the judgment, which should be affirmed, with costs.

All concur.  