
    Daniel B. Tripp and Henry I. Van Hoesen, as Administrators with the Will Annexed of John L. Haviland, Deceased, Appellants, v. Hermon D. Hunt, as Administrator, etc., of Mary S. Haviland, Deceased, Respondent, Impleaded with The First National Bank of Cortland.
    
      Demurrer ■—when it does not present the question-whether, the plaintiffs have an adequate remedy at law.
    A complaint in an action brought against an administrator and. a bank to compel the administrator to return to the plaintiffs, with his indorsement as administrator, a certificate of deposit in the defendant bank owned by the plaintiffs, to. the end that the latter might obtain the moneys represented thereby, which the bank had withheld because of the non-presentation of the certificate, so indorsed, is not subject to a demurrer interposed byyhe defendant administrator upon the ground that the plaintiffs have an adequate remedy at law against both the defendants or against the demurring defendant, where such fact does not affirmatively appear upon the face of the complaint.
    
      Semble, that if the plaintiffs have an adequate remedy at law against the bank which, by virtue of any peculiar circumstances, operates to discharge the administrator in equity, the latter’s pleading should affirmatively show it. ■
    
      Semble, that the objection that the plaintiffs in-an action in equity have an adequate remedy at law, is a matter of defense and should be set up by answer.,
    
      Appeal by the plaintiffs, Daniel B. Tripp and another, as administrators with the will annexed of John L. Haviland, deceased, from an interlocutory judgment of the Supreme Court in favor of' the defendant Hermon D. Hunt, as administrator, etc., of Mary S. Haviland, deceased, entered in the office of the clerk of the county Cortland on the 19th day of July, 1899, upon the decision of the court, rendered after a trial at the Cortland Special Term, sustaining the said defendant’s demurrer to the plaintiff’s complaint.
    
      O. H. Kellogg, for the appellants.
    
      T. E. Courtney, for the respondent.
   Landon, J.:

The complaint sets forth but one cause of action, namely, a right existing in the plaintiffs to have the defendant Hunt return to them, with his indorsement as administrator, a certificate of deposit in the defendant bank, of which certificate they are the owners, to the end that, upon plaintiffs’ presentation thereof to the bank so indorsed, they may obtain the money thereon, which the bank meantime, because of the non-presentation of the certificate so indorsed, withholds.

That the plaintiffs have an adequate remedy at law is defensive matter and should be set up by answer. (Tucker v. Manhattan R. Co., 78 Hun, 439, and cases there cited.) It does not affirmatively appear upon the face of the complaint that the plaintiffs have an adequate remedy at law against both defendants in a single action, or against the demurring defendant. The complaint does not state that he is responsible ; moreover, he is here charged as administrator and joined with the bank, and to say that he might have been sued alone individually at law, is like saying that the plaintiffs might have sued somebody else. The defendant Hunt’s contention that the plaintiffs have an adequate remedy at law against the bank, if it had been pleaded, would have been like ah allegation that he is not liable because somebody else is.

If the plaintiffs have an adequate remedy at law against the bank, and if by virtue of any peculiar circumstances that fact operates to discharge the defendant Hunt in equity, his pleading should affirmatively show it. This his demurrer does not do.

The interlocutory judgment is reversed; with costs, and judgment directed for plaintiffs upon the demurrer, with costs, with usual leave to the appellant to answer on payment of costs.

All concurred, except Putnam, J., not voting.

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with usual leave to defendants to answer upon payment of costs.  