
    (78 Misc. Rep. 417.)
    DUERINGER et al. v. KLOCKE et al.
    (Erie County Court.
    December 9, 1912.)
    Partition (§ 55)—Complaint—Appointment of Representative.
    Where A. D., less than three years after the death of her stepmother, sought to partition an estate left by her father, one-third to her stepmother and the remainder to his eight children, four of whom, including A. D., were children of a former wife, and where her complaint in which she was joined by two1 half-sisters as, plaintiffs, failed to state whether any executor or administrator had been appointed for her stepmother’s estate, such complaint was fatally defective under Code Civ. Proc. § 1538, requiring such an allegation; it being Immaterial that A. D. took no portion of her estate from her stepmother or that she need not have joined her step-sisters as plaintiff, since they were necéssary parties either as plaintiff or defendant, and, if defendants, the omitted allegation would have been just as necessary under the express provisions of section 1538.
    [Ed. Note.—For other cases, see Partition, Gent. Dig. §§ 148-159, 182; Dec. Dig. § 55.*]
    
      Action by Augusta Dueringer and others against Henry Klocke and others. Plaintiffs’ motion for judgment denied, and defendants’ motion for judgment on pleadings granted conditionally.
    Benjamin N. Shaffer (Emil Rubenstein, of Buffalo, of counsel), for plaintiffs.
    Frank Harding, of .Buffalo, for defendant Charles A. Klocke.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   TAYLOR, J.

This is a partition action. It appears that one Henry Klocke, father of the defendant Henry Klocke, above named, died more than three years ago, leaving him surviving his wife Caroline, four children of himself and said wife, and four children of himself and a former wife, one of the latter of whom is the plaintiff Augusta Dueringer, above named. The said ancestor, Plenry Klocke, by a will left one-third of his property to his wife Caroline, and two-thirds thereof to all his children, share and share alike. His wife Caroline died less than three years prior to the time of the commencement of this action.

The defendant Charles A. Klocke demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of' action. In support of his contention he cites a portion of section 1538 of the Code of Civil Procedure, which reads as follows:

“Whenever an action for the partition of real property shall he brought before the expiration of three years from the time when letters of administration or letters testamentary, as the case may be, shall have been issued upon the estate of the decedent from whom the plaintiffs title is derived, the executors or administrators as the case may be, if any, of the estate of said decedent, shall be made parties defendant, m case no executor or administrator of such decedent shall have been appointed at the time said action is begun, that fact shall be alleged in the complaint.”

The complaint contains no allegation on the subject as to whether or not an executor or administrator of the estate of Caroline Klocke has been appointed, and the demurring defendant contends that this is a fatal defect.

The plaintiffs argue that, under section 1532 of the Code of Civil Procedure, the plaintiff Augusta Dueringer, who takes no portion of her estate in common from said Caroline Klocke, might have brought this action alone as plaintiff, instead of joining with her as plaintiffs Lissete J. Green and Clara J. Hanover; furthermore, that, inasmuch as the objection made does not lie against the plaintiff Augusta Dueringer, the complaint is sufficient at least as to her, and that, therefore, the demurrer should be overruled. I cannot agree with the plaintiffs’' contention. If counsel had chosen to make Augusta Dueringer alone plaintiff, the said plaintiffs Lissete J. Green and Clara J. Hanover would then have been necessary parties defendant, and under the portion of said section 1538 immediately following that portion above quoted an allegation would have been necessary in that case as to-executors or administrators, if any, of Caroline Klocke. So in either case, whether said persons are made parties plaintiff or defendant, the-allegation with reference to an executor or administrator is requisite-to a complete statement of a cause of action, and the fact that saidi persons are added as'plaintiffs, instead of being made defendants, does not excuse the absence of the allegation mentioned.

Instead of this matter being moved for trial on the demurrer, it is brought in on a motion for judgment by plaintiff and argued as if a motion were made by said defendant for judgment on the pleadings under section 547 of the Code of Civil. Procedure. Therefore I hold that the plaintiffs’ motion for judgment must at present be denied, and that the motion for judgment on the pleadings will be granted unless the plaintiffs make an appropriate amendment pursuant hereto, and pay said demurring defendant $10 motion costs on or before December 30, 1912. In case said costs are paid before said date, the plaintiffs may within said time amend their complaint.  