
    SUPREME COURT.
    Richard Marshall, administrator, respondent, agt. Charles E. Bresler, appellant.
    
      Code of Civil Procedure, sections 488,721—Foreign administrators—Accounting hy—Clerical errors in copies—Demurrer—Legal capacity to sue — Cause of action.
    
    An administrator appointed in a foreign country upon coming into this state with assets may be required to account in his character of trustee, to one entitled to a distributive share, without taking out letters here,
    The plaintiff as administrator of a next of kin sued defendant for an accounting of an estate he was administrator of in Germany, the assets of which it was alleged he had brought into this state and converted to his own use, held on demurrer that the plaintiff possessed a good cause of action.
    By a clerical error the date of plaintiffs appointment as administrator was written in the copy of the complaint served on the defendant 1873 (which was before the intestate’s death) instead of 1883 as it appeared in the original; and the plaintiff in the caption styled himself “ administrator” in place of "as administrator,” and omitted in the body of his complaint to state expressly that he sued in his representative capacity :
    
      2eld, that a demurrer to his legal capacity to sue was not tenable.
    
      Second Department, General Term, February, 1885.
    
      Before Barnard, <7. J., Dr km an and Pratt, JJ. !
    The plaintiff’s complaint stated that about March 5, 1873 one Amelia Schultz, unmarried, died intestate at Apolda, Saxon Weimar, Germany, possessed of real and personal estate amounting to upwards of $56,566, leaving as her sole heirs and next of kin her sister Louisa Marshall the plaintiff intestate, and the decendants of Willimena Hehner a deceased sister, who were made defendants, as their consent could not be obtained to be joined as plaintiffs. It further averred that about March 10, 1873 the defendant Charles E. Bresler obtained from said Louisa Marshall a power of attorney authorizing him to act for her in the settlement of said estate, to collect her share and to perform in her name all acts necessary to accomplish said objects in pursuance of which said Bresler was appointed at Apolda, Saxon Weimer, Germany, about May 15, 1873, sole administrator of said estate, qualified and entered upon the duties of the office, took possession of said estate as said administrator, sold the real property and became possessed in all of about $56,566 in personalty; that after the payment of all just debts there remained a balance of many thousands of dollars, though said Bresler attempted to maintain it was only $9,500; plaintiff believes it much greater; one-half of said balance by the laws of said domicile of said Amelia Schultz and of this state, belonged to said Louisa Marshall. That said Bresler brought said balance into this state, and has it here now within the jurisdiction of this court, having purchased property with it and converted it to his own use. That said Bresler never rendered an account of his proceedings as said attorney or as said administrator or paid the distributive share of said Louisa Marshall, though frequently requested so to do, after the expiration of eighteen months from his appointment as such administrator. That said Louisa Marshall died intestate and on February 9, 1883, letters of administration on her estate were duly issued to the plaintiff by the surrogate of New York county, whereby he was appointed administrator and thereupon having qualified, he entered upon the duties of the office. Judgment was demanded that said Bresler render an account of his proceedings as such attorney and administrator, showing the amount of said Amelia Schultz’s personal estate which came into his hands or into the hands of any person or persons by his order or for his use; also showing the said intestate’s just debts, and that the residue over such debts be ascertained, and that defendant Bresler pay to the plaintiff one-half thereof with interest from June 1, 1874, besides the costs.
    By a clerical error in transcribing, the date of plaintiff’s letters of administration was written February 9, 1873, in the copy of the complaint served on the defendant Bresler, instead of February 9, 1883, as it was in the original. The defendant Bresler demurred to the complaint, that it did not state facts sufficient to constitute a cause of action; and that the plaintiff had not legal capacity to sue on the ground that a cause of action accruing in the lifetime of the intestate must be brought by the administrator.
    Cullen, J., overruled the demurrer and gave judgment for the plaintiff thereon, with costs, with leave to the defendant to put in an answer within twenty days on payment of costs. The defendant appealed.
    
      William N. Cohen and Lauterbach & Spingarn, for appellant contended that the cause of action having accrued in Louisa Marshall’s lifetime could be brought only by her administrator (Ketchum agt. Ketchum, 4 Cowen, 87; Patterson agt. Patterson, 59 N. Y., 576, 582; Sheldon agt. Hoy, 11 How. Pr., 11; Slocum agt. Barry, 34 How. Pr., 320; affirmed, 38 N. Y., 46).
    The action is brought by Bichard Marshall, the individual, for the title omits the word “as” before administrator (Bannon agt. McGrove, 45 N. Y. Supr., 517; Sheldon agt. Hoy, 11 How. Pr., 11; Stilwell agt. Carpenter, 62 N. Y., 639; Merritt agt. Seaman, 6 N. Y., 163; Gould agt. Glass, 19 Barb., 197). Where the title is thus defective it must appear in the body of the complaint that plaintiff sues in that capacity (Fowler agt. Westervelt, 17 Abb. Pr., 63; Gould agt. Glass, supra; Shuler agt. Meyers, 5 Lans., 170). There is no intimation of any representative capacity in the complaint (Bannon agt. McGrove, supra; Carpenter agt. Stilwell, supra). It appears by the complaint that Louisa Marshall was living on May 10, 1873, while, according to the copy of it served on the defendant, letters of administration on her estate were issued to the plaintiff on February 9,1873. Admitting that this is an error of ..the copyist in transcribing, yet the party serving it is bound by it (Fiske agt. Noble, Daily Reg., May 31, 1883; see Bank agt. Van Rensselaer, 6 Hill, 240). The allegation is fatally defective in not averring that the plaintiff is administrator at the time of bringing the suit (See Forrest agt. Mayor, 13 Abb., 350; Gould agt. Glass, supra; Shuler agt. Meyers, supra; Austin agt. Munro, 47 N. Y., 363). This defect distinguishes the present ease from those holding that the representative capacity need not appéar in the title (Fowler agt. Westervelt, supra; Beers agt. Shannon, 12 Hun, 161).
    
      Henderson Benedict, for respondent claimed that the cause of action was sufficient, as the defendant being found here with assets could be required to account as a trustee.
    He is not sued as administrator. Payment cannot be enforced in Germany, because both the defendant and the property are here, and if it could not be accomplished here a failure of justice would be the result. The principle was adopted as long ago as A. D. 1600 in Dowdale's case (6 Co. R.), through lord Coke, who said: “ If the executor have goods in any part of the world, he should be charged in respect of them.” It is the unquestioned law of this state (McNamara agt. Dwyer, 7 Paige, 239; Montalvar agt. Claver, 32 Barb., 190; Gulick agt. Gulick, 33 Barb., 92; Campbell agt. Toucey, 7 Cowen, 64; Brown agt. Brown, 1 Barb. Ch., 190; Sloter agt. Carroll, 2 Sanf. Ch., 573; Field agt. Gibson, 20 How., 277, per Davis, P. J.; Matter of Webb, 11 Hun, 125 ; see 5 Redf., p. 364). The same rule prevails outside of New York (Anderson agt. Counter, 2 Myl. & Keene, 763; Tunstall agt. Pollard, 11 Leigh [ Va.], 1; Monion agt. Tilsworth, 18 B. Monroe [Ky.], 597; Johnson agt. Jackson, 56 Ga., 326; Bryan agt. McGee, 2 Wash. C. C. R., 337; Pugh agt. Jones, 6 Leigh [Va.], 310; Swearinger agt. Pendleton, 4 S. & R. [Penn.], 389; Evans agt. Tatum, 9 id., 252; Willing agt. Perot, 5 Rawle [Penn.], 264). Our complaint contains all the averments of those in the foregoing cases, besides many additional ones. Defendant is asked to account as both attorney and administrator. There can be no question of our right to obtain an accounting of him as attorney wherever found (Marvin agt. Brooks, 94 N. Y., 71; Foley v. Hill, 2 H. of L. Cases, 28). It is only necessary to show a trust or a fiduciary relation to obtain an accounting in equity, and charging conversion of the assets did not change the action from an accounting (Segelken agt. Meyer, 94 N. Y., 473; Marvin agt. Brooks, supra). There is no improper joinder of causes of action for only one is stated, though defendant is asked to account as both attorney and administrator (5 Daly, 353; 18 Hun, 306; 10 Abb., 445). The demurrer to plaintiffs legal capacity to sue is frivolous. His appointment as administrator is alleged, but it was unnecessary, for the description in the caption was alone sufficient. The Code (sec. 488) says, that to be demurrable “ it must appear on the face of the complaint” that plaintiff “ has not legal capacity to sue.” If there be a mere failure to present the facts conferring capacity the objection must be taken by answer. To make the demurrer good it would have to “appear on the face of the complaint ” that the plaintiff was not administrator. An omission to aver his appointment would not be enough, for then it could only be raised by answer alleging his non-appointment (Code, sec. 488; Phœnix Bank agt. Donnell, 40 N. Y., 410; Barclay agt. Quicksilver M. Co., 6 Lans., 25; Bank agt. Corbert, 10 Abb. N. C., 85). Thé omission of the word “as” before administrator in the title does not affect plaintiff’s legal capacity to sue or prevent him from claiming as administrator (Beers agt. Shannon, 73 N. Y., 292; Stilwell agt. Carpenter, 62 N. Y., 639). In determining whether the plaintiff sues as administrator the whole pleading must be considered (Stilwell agt. Carpenter, supra). As the clerical error, which gives the date of plaintiff’s letters of administration 1873 instead of 1883, only exists in the copy and not in original complaint, it must be disregarded and cannot disturb this judgment (Chatham Nat. Bank agt. Merchants' Nat. Bank, 1 Hun, 702; Code, sec. 721, sub. 9). The error could not mislead the defendant (Union Furnace Co. agt. Shepherd, 2 Hill, 413; Russell agt. St. Nicholas Ins. Co., 41 Super. Ct. [J. & S.], 279; Parkhurst agt. Wolf, 47 id., 320). Even if calculated to mislead it is not a ground of demurrer and could only be taken advantage of by moving to set aside the service (Nones agt. The Hope M. L. Ins. Co., 8 Barb., 541; Union Furnace Co. agt. Shepherd, supra). Even with the letters dated 1873 no absence of capacity to sue was shown, for their issuing established his capacity and they were prima facie evidence of the surrogate’s jurisdiction, and they could not be questioned in this collateral proceeding (Belden agt. Meeker, 47 N. Y., 307; Rodergas agt. East River S. B., 63 N. Y., 460).
   Dykmah, J.

This is an action by an administrator to compel the defendant to account for money received by him for the plaintiff’s intestate. The defendant has demurred to the complaint, and has assigned for his objections that it does not state facts sufficient to constitute a cause of action, and that the plaintiff has no legal capacity to sue for the reason that a cause of action accruing in the lifetime of the intestate must be brought by the administrator. Neither of these grounds of demurrer are tenable. The cause of action set out in the complaint is full and perfect against the defendant, it is this : Amelia Schultz, an unmarried lady, died in Germany intestate, leaving a large amount of property, and leaving Louisa Marshall among others her sole heirs and next of kin. Louisa Marshall then resided in the state of New York, and she executed a power of attorney to the defendant authorizing and empowering him to collect her portion of the estate for her.

Under and in pursuance of this power of attorney the defendant was appointed sole administrator of the estate of Amelia Schultz, in Germany, and received all her estate and property amounting to about $56,566. After the payment of all the debts there remains a balance of many thousand dollars which the defendant has brought into this state and converted to his own use in the purchase of property. One-half of this belonged to the plaintiff’s intestate Louisa Marshall, the client and principal of the defendant in the mentioned power of attorney.

The action is, therefore, against the defendant not as administrator founded on a liability of his intestate, but as an individual predicated on his wrongful use and misappropriation of trust funds. If this plaintiff cannot maintain an action against the defendant for the distributive share of his intestate, in the estate which came to the defendant and has been converted by him to his own use, then he will retain the same by virtue of his misappropriation. Plainly there is no such law and the complaint is sufficient (McNamara agt. Dwyer, 7 Paige, 239; Montalver agt. Clover, 32 Barb., 190; Gulick agt. Gulick, 33 Barb., 92). Neither is the second ground of demurrer well assigned, for the reason that the action is brought by the administrator. The complaint states that Louisa Marshall died intestate; that letters of administration on her estate were duly issued to the plaintiff by the surrogate of New York county, whereby he was appointed administrator, and thereupon having qualified he entered upon the duties of his office.

The action is brought by Bichard Marshall administrator, &c., of Louisa Marshall, deceased, the judgment will be entered under the same title, and when the plaintiff collects the money which the defendant by this demurrer admits is in his hands, he will hold the same in his representative capacity as administrator of the estate of Louisa Marshall.

The order and judgment appealed from should be affirmed, with costs.

Baenaed, O. J., and Pbatt, J., concur.

Judgment and order affirmed, with costs.  