
    The City of New York, Plaintiff, v. Frederick Dietz, William H. White and Samuel McMillan, Trustees, Estate of Robert E. Dietz for Anna Dietz, Defendants.
    (Supreme Court, New York Special Term,
    March, 1910.)
    Judgment: General rules —Death of party before judgment: Rendi-
    tion— Parties — Judgment against party not served.
    Taxes — Persons, objects and interests taxable — In general — Trustees.
    The liability of the trustees of an estate for the personal tax under Laws of 1896, eh. 90S, § 8, is a several liability; and, in an action to collect the tax, eaeli trustee is liable only for the share of the estate in his hands. ,
    Where, at the commencement of a suit against three trustees of an estate to collect the personal t'ax due therefrom, it appears that one of the defendants was dead,, the action must be dismissed as to him; and no judgment can be rendered against one of the other defendants. who was not served with the summons and complaint.
    Motion to dismiss complaint,
    
      Daniel Nason, for petitioners.
    Archibald R. Watson (George O’Reilly, of counsel), for City of New York.
   Gebaed, J.

¡Motion for order dismissing the complaint, without costs, and directing the cancellation of the tax. Frederick Dietz, William H. White and Samuel McMillan were trustees of the estate of Bobert E. Dietz, for Anna Dietz. The city of ¡New York commenced suit to collect from them as residents of the borough of the Bronx the personal tax owing from the above named estate. This suit was instituted by the service of a summons and complaint on defendant Dietz. It appears that defendant White is dead, and the corporation counsel agrees that the action against defendant Dietz be dismissed for the reason that he was not a resident of the borough in which .the assessment was made. In the complaint served on Dietz the city prays for judgment for the whole amount of the tax on said estate, and asks this court to hind ¡McMillan, a defendant who had never been served, for the amount claimed to be due in the complaint served on Dietz, and which complaint must- of necessity be dismissed as against Dietz. There are two questions to be decided. First, Does service on one defendant bind all in an action of this nature ? and, second, can one trustee in an action of this nature he hound for the entire amount of the tax due? As to the first question I am of the opinion that section 8, chapter 908 of the Laws of 1896, clearly indicates that the statute contemplates a separate liability, and as to the second question I am of the opinion that each trustee in an action of this nature is liable only for the share of the estate in his hands. People ex rel. Moller v. O’Donnel, 183 N. Y. 9.

Ordered accordingly.  