
    William P. Walton et al., Resp’ts, v. Albert P. Stewart, Trustee, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 16, 1891.)
    
    Trust—Distribution of fund—Parties.
    Plaintiffs are the successors of the officers of the Eleventh regiment, who-raised a fund for the benefit of sick and needy members of the regiment, and as such appointed defendant as trustee of the fund. The complaint alleges these facts and that there is no longer any other member of the regiment for whose benefit the trust was created, and asks for a destribution of the fund. Held, that no defect of parties appeared on the face of the complaint; but if other parlies are found to be necessary they may be brought in or their rights protected by the decree.
    (Barrett, J., dissents.)
    Appeal by defendant from an interlocutory judgment entered upon an order overruling a demurrer to the complaint.
    
      J. R. Hayward, for app’lt; Charles H. Collins, for resp’ts.
   Bartlett, J.

We agree with the learned judge who heard this case at special term, that the complaint states facts sufficient to constitute a cause of action against the defendant, although the relief to which the plaintiffs are entitled may be different in some respects from that which they demand. The fund in controversy was raised by the officers of the Eleventh regiment, as such, for the benefit of the sick and needy members of the regiment. The plaintiffs are the successors of the officers who thus raised the fund. By their action the defendant was chosen trustee. It was through these very plaintiffs, therefore, that he acquired possession and control of the money, to be applied to the use of third persons under certain circumstances; and now when they allege that the purpose of the trust has failed and ask a distribution of the fund among those who are entitled to it, the trustee who owes his position wholly to their action cannot be allowed successfully to question their legal capacity to call him to account and to insist that the money which they placed in his hands shall be judicially distributed among those to whom it belongs. They may be wrong in claiming that it belongs wholly to the persons now before the court. That matter can be determined hereafter, and other parties if necessary can be brought in or their rights may be provided for and protected in the decree. Under the allegations of the complaint, however, there does not appear to be any defect of parties of which the defendant can take advantage by demurrer. The plaintiffs who made the defendant trustee are before the court; the trustee himself is here ; and it is alleged that there is no longer any other member of the Eleventh regiment for whose benefit the trust was created. As to the original donors of the money, it cannot be determined that they are necessary parties without further information than the complaint contains in regard to the circumstances and conditions under which it was contributed to the fund

The judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

Barrett, J.

(dissenting).—I am unable to concur with my brother Bartlett. The plaintiffs in their own right have alleged no facts entitling them to any relief. They do not say that they contributed in any wise to this fund. So far as they are personally concerned, therefore, the complaint is demurrable in failing-to state facts sufficient to constitute a cause of action.

■ If, however, they are treated as pleading in a representative capacity, the complaint is defective in failing to state the origin of the fund, and to make the persons who contributed to it parties. If the old officers themselves contributed the entire fund, they should have been made parties. If they were aided by outside persdns, such persons should have been brought in. For if the trust has terminated, the defendant, when called upon to account, has a right to require such procedure as will effectually release him in a single action from all claims to the fund. Thus the beneficiaries should also have been, brought in. The complaint is entirely barren with regard to the precise form and limitations of the trust in question, and the statement that the plaintiffs as successors to the officers who “ accumulated” the fund (whatever that may mean) are the legal successors to such fund, and entitled to share therein equally, is a mere conclusion unsupported by fact I think the complaint is fatally defective, and that the demurrer should have been sustained.  