
    JAMES K. PLACE, substituted in place of Barker Place, as Executor, &c., Respondent, v. JEDEDIAH K. HAYWARD, Appellant.
    
      Substitution of party plaintiff, what forms no objection to granting order for—Executor plaintiff, legatee, when not substituted for.
    
    Where in an action brought by a plaintiff suing as an executor, the defendant sets up counterclaims and set-offs as against such plaintiff, and obtains judgment in his favor, from which the plaintiff appeals, and pending the appeal another person is substituted for the plaintiff, no question can arise on the appeal as to the right of the defendant to set up the counterclaims and offsets against the substituted plaintiff; therefore the fact that the defense is based on such counterclaims and offset, constitutes no objection to the making of an order of substitution.
    Where an executor, as such, commences an action, and after judgment therein for defendant, appeals to the general term, pending which he is removed and his letters revoked by the surrogate, and the defendant’s wife was appointed administratrix with the will annexed, but he still remains plaintiff in the action, a legatee in the will whereof the plaintiff was executor, will not be substituted for him, for the purpose of prosecuting the appeal, on the ground that the administratrix refused to prosecute it.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 3, 1888.
    Appeal from order substituting James K. Place as plaintiff, in the stead of the former plaintiff.
    The action was begun in the name of Barker Place, as executor, &c., against the present defendant. Final judgment was for the defendant. Barker Place, as executor, &c., appealed from this judgment to the general term. Before the appeal was taken, proceedings were begun before the surrogate to remove Barker Place, as executor. The surrogate after the appeal, made a decree removing him, and revoking the testamentary letters that had been issued to him. Afterwards, James K. Place, named in the title of this proceeding as plaintiff, made petition to the surrogate, that letters of administration, with the will annexed, be issued to him, Place. In answer to this, Mrs. Emeline Hayward claimed that there ivas no occasion for making an appointment at all, and that if there were such occasion, letters should be issued to her. The surrogate determined that the claim in the present action was an unadministered asset of the estate, and therefore the surrogate had jurisdiction to appoint an administrator, and that Mrs. Hayward was entitled to the letters.
    
      On the application below, it appeared that James K. Place was a legatee by the will, and that Mrs. Hayward refused to prosecute this appeal. Thereupon the order appealed from was made, that James K. Place be substituted as plaintiff. The defendant and Mrs. Hayward severally appeal.
    
      George II. Phelps, attorney and of counsel for J. K. Hayward, appellant; Robert Godson, attorney, and George H. Phelps, of counsel for E. P. Hayward, administratrix, appellant, argued:
    I. This action, in substance, is a bill to redeem assets from pledges, made by the executor himself after his letters, for cash advances made to him by the defendant, at the time of the pledge. The defense is: 1. Set-off ' of these advances to the amount of the proceeds received on the collaterals so pledged. 2. Affirmative counterclaims for over advances. 3. Affirmative counterclaims for legal professional services rendered by defendant to the plaintiff in reference to the estate matters. Since the pledges were under seal, and admitted to be bona fide,plaintiff’s only possible remedy was by bill to redeem. The plaintiff is estopped from denying the mortgage purport of the writing under seal. McCrea v. Purmot, 16 Wend. 460; Story Eq. Jr., 371, n; Shadbold v. Bassit, 1 Lan. 124; Calkins v. Long, 22 Barb. 97; Gilleland v. Failing, 5 Den. 313; Coleman v. 2d Ave. R. R. Co., 38 N. Y. 201. It is obvious that representative offsets and counterclaims cannot be litigated in this action. Thompson v. Whitmarsh, 100 N. Y. 39, 40; Patterson v. Patterson, 59 Ib. 574; Austin v. Monroe, 47 Ib. 360; Ferrin v. Myrick, 41 Ib. 315. The words, “as executor,” are merely descriptio persones. Thompson v. Whitmarsh, 100 N. Y. 39. Even in a representative action by an executor against his attorney, who has received the estate’s money before the death, the attorney may counterclaim for services rendered the executor after the death as defendant has done here. Davis v. Stover, 58 N. Y. 473; Gopen v. Crawford, 43 How. 278. But how this cross-relief can be litigated without the presence of Barker Place we fail to understand.
    II. In a pledgor’s bill to redeem from his pledge, defendant may have affirmative relief upon all contracts with pledgor. To contend that the defendant shall not litigate his alleged advances is absurd, and we think that it is equally absurd to deny his right to have affirmative relief for overadvances in such redemption action. The writing up an executor’s own transactions in an executor form, does not deprive the defendant of cross-litigation of the same nature, and always has afforded, until this action, individual costs against the plaintiff. Holdrige v. Scott, 1 Ban. 303.
    
      Charles F. Wells, attorney and of counsel for respondent, argued:
    I. The administratrix is vested with the title to the choses in action involved in this action, and is a trustee for said James K. Place. It has been indicated in the action that it was properly brought by Barker Place in his representative capacity, and not individually.
    II. The court had the power to .make the substitution, and the cestui que trust had a right to substitution well established by law. Randall v. Dyett, 38 Hun 347; Davies v. N. Y. Concert Co., 41 Hun 492. It has now become very well settled where a trustee refuses upon a proper request made to him for that purpose, to take necessary legal proceedings for the protection of the beneficiaries under the trust, they may proceed for their own protection and the enforcement and maintenance of their rights and interests under the trust. Tilby v. Hayes, 27 Hun 251; Bockes v. Hathorn, 78 N. Y. 227; Randel v. Dyett, supra; . McHenry’s Petition, 9 Abb. N. C. 260; Edwards v. City of Watertown, 23 Week. Dig. 230; Barbour on Parties, 2d ed. 1884, p. 482; Blinkerhoff v. Bostwick, 88 N. Y. 52 ; Dodge v. 
      Woolsey, 18 How. U. S. 331; Hubbard v. Medbury, 53 N. Y. 102; Western R. R. v. Nolan, 48 N. Y. 513. The proper way to ask relief is not by a new action, but in the action pending. Gould v. Mortimer, 26 How. Pr. 167; Segelken v. Myer, 94 N. Y. 473.
    III. The facts presented fully warranted the relief which was granted. Weetjen v. Vibbard, 5 Hun 267.
   By the Court.—Sedgwick, Ch., J.

The objections made that the action was not by the original plaintiff, as representing the testator, and that if the substitution is allowed, the defendant cannot maintain certain offsets and counterclaims of the answer, do not call for a reversal of the order. The surrogate determined that the basis of his jurisdiction to appoint an administrator, was that the claim in the present action was an unadministered asset. On the other hand, the question on the appeal from the judgment is whether it should be affirmed or reversed. This will involve the legal relation of defendant’s alleged counterclaims and offsets to the claim as made by the original plaintiff, Barker Place, as executor. No question can arise as to the right of defendant to set up the counterclaims and offsets against the substituted plaintiff.

I am however of the opinion that Mr. James K. Place showed no reason for his being made a substituted plaintiff, as long as Barker Place, as executor, etc., remained plaintiff of record. As Mrs. Hayward, as administratrix, was not a party to the action, no question could be litigated between her and Mr. James K. Place. Perchance, she might have a right to apply to be substituted, and might be made plaintiff. Until this was an accomplished fact, Mr. Barker Place, as executor, was plaintiff, and had sole right to be so deemed. Although he had been removed as executor, his removal did not, of itself, affect this litigation. As to it, he had the power' to allow a party in interest, such as Mr. James K. Place is assumed to be, to prosecute the appeal for the purpose of reversing the judgment. And on the facts that appeared on the motion below, Barker Place was not unwilling to permit this to bo done. Mrs. Hayward could not prevent such a prosecution of the appeal, excepting by some application to the court. Upon such application, the court could proceed to determine what were ■ the rights of Mr. James K. Place.

I therefore think that no case was made on the merits for the substitution ordered below.

Section 1296 of the Code of Civil Procedure, is not applicable to this case, and its terms imply a party in interest, in order to be made a party to an appeal, under its provisions, must succeed wholly to the right of the party of record.

Order reversed, with §10 costs.

Freedman and Ingraham, JJ., concurred.  