
    Laura E. Mertens, as Administratrix, etc., of Robert E. Mertens, Deceased, Plaintiff, v. Frederick W. Mertens, Jr., Individually and as Sole Surviving Partner of the Firm of F. W. Mertens & Sons, and as Sole Executor, etc., of Frederick W. Mertens, Deceased, Respondent. In the Matter of the Application of Robert E. Mertens, Jr., for Leave to Intervene in the Above-entitled Action, Robert E. Mertens, Jr., and John V. Schaefer, Jr., his Guardian ad Litem and Special Guardian, Appellants.
    
      Application to intervene — when although, not a matter of right under section 452 of the Code of Civil Procedure the court has power to grant it.
    
    The firm oí Frederick W. Mertens & Sons consisted of Frederick W. Mertens, Sr., Frederick W. Mertens, Jr., and Robert E. Mertens. Robert E. Mertens died, leaving surviving him his widow, Laura E. Mertens, and an infant son, Robert E. Mertens, Jr. Subsequently Frederick W. Mertens, Sr., died leaving a will' by which he bequeathed a legacy of §25,000 to Robert E. Mertens, Jr. Frederick W. Mertens, Jr., who was appointed executor of his father’s estate, continued to conduct the business formerly conducted by the partnership and rendered no accounting of such business.
    In a proceeding instituted by Laura E. Mertens, as general guardian of Robert E. Mertens, Jr., for an accounting by Frederick W. Mertens, Jr., as executor of the estate of Frederick W..Mertens, Sr., the surrogate charged the executor with a substantial sum for property belonging to the estate in the hands of the executor. He also found that this sum was exclusive of the value of the good
    . will, assets and uncollected accounts of the firm, but refused to direct an accounting with respect to the latter matters.
    Thereupon Laura E- Mertens, as administratrix of Robert E. Mertens, commenced an action against Frederick W. Mertens, Jr., individually and as sole surviving partner of the firm, and as sole executor of Frederick W. Mertens, Sr., for an accounting with respect to the partnership assets.
    Upon an application by Robert E. Mertens, Jr., for leave to intervene in the action it was <
    
      Held, that, while the^infant, as legatee under the will of Frederick W. Mertens, Sr., had no direct interest in the action, and was, therefore, not entitled, as a matter of strict legal right, to intervene in the action under the provisions of section 452 of the Code of Civil Procedure, the court had power to allow him to intervene;
    That as, in contemplation of law, the plaintiffs sole interest in the action was as administratrix of her husband, and as Frederick W. Mertens Was hostile to the interests of the infant, the court would, in order to protect the infant’s rights, permit him to intervene.
    
      ApPEAL by the petitioner, Robert E. Mertens, Jr., by John V. Schaefer, Jr., his .guardian ad litem and special guardian, and by said special guardian, John V. Schaefer, Jr., from an order of the * Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of June, 1903, denying the application of the said Robert E. Mertens, Jr., for leave to intervene in the action.,
    
      Roger Foster, for the appellants.
    
      Joseph M. Proskauer, for the respondent.
   Hatch, J.:

Prior to the 18th day of January, 1899, the defendant Frederick: W. Mertens,"Jr., was associated in business as a copartner with his father, Frederick "W. Mertens, and his brother, Robert E. Mertens, under the firm name of Frederick W. Mertens & Sons. The firm was engaged in the business of, manufacturing and selling cigars in the city of New York. On the above-mentioned date Robert E. Mertens died, leaving him surviving his wife Laura, who is the plaintiff herein, and the. infant son Robert E. Mertens, Jr., upon whose behalf the present application is made.- In June, 1899,. Frederick W. Mertens, Sr., died, leaving the defendant Frederick W. Mertens, Jr., the sole surviving partner of the firm and sole executor of the last will and testament of his father. Under the will of Frederick W. Mertens, Sr., a legacy of $25,000 was left to the infant Robert E. Mertens, Jr. After the death of his father Frederick W. Mertens, Jr., continued to carry on the business formerly conducted by the firm under the firm name, and continues to use the same and the good will and assets, connected therewith, and has rendered no accounting of such property. Prior to the commencement of this action, and in June, 1899, a proceeding was instituted by Laura E. Mertens, as general guardian of Robert E. Mertens, the. present applicant, for an accounting by Frederick W. Mertens, as executor. The executor filed an account therein, claiming that the balance-in his hands of the assets of the copartnership only amounted to the sum of $16.19. Upon the hearing had in that proceeding the surrogate found that there was $5,119.17 of property in the hands of the executor belonging to the estate; and charged the executor therewith. The surrogate also found' that this sum was exclusive of the value of the good will, assets and uncollected accounts of the firm, but as to such matters the surrogate refused to . entertain an accounting of the same, and decreed in respect thereto that the parties should be left to an action for an accounting in a court of competent jurisdiction, the surrogate holding that he hadno jurisdiction to inquire into and adjudicate upon such matters. Thereupon, and in March, 1901, Laura E. Mertens, as administratrix, commenced this action, and the present application asks that the infant, Robert E. Mertens, be permitted to intervene for the protection of his interest in the $25,000 legacy left to him in his grandfather’s will. It is claimed that by the provisions of section 452 of the Code of Civil Procedure the infant is entitled, as matter of strict legal right, to intervene in this action. We are of opinion that such is not the correct construction of the section. As matter of strict law the infant is not interested in the subject-matter of the action. His only interest is to secure the payment of his legacy, and this may be paid out of any property left by the testator; and while it is doubtless true in the present case that the assets of the copartnership, for which the executor is bound to account, will furnish the fund from which the legacy is to be paid, yet the infant as legatee has no direct interest in an action brought for the purpose of an accounting of the copartnership. In the usual course of administration and in contemplation of law his contingent interest in the result of such an action and in the prosecution thereof, through which the assets are to be reduced to possession and converted into money, is represented and protected by the executor of the estate ; consequently there is no basis for saying that as matter of strict legal right the infant is interested in the action within the meaning of the Code provision. It would follow from this construction of the provision that the infant was not a necessary and scarcely a proper party to such an action. It does not follow, however, that the court is without power to permit the infant to intervene. It may at all times protect the interests of the infant, and where it appears to be necessary for the protection of such interest the infant may be permitted to intervene. (Haas v. Craighead, 19 Hun, 396.) It is only in exceptional cases, however, that such an order will be made, and such motion will not be granted unless there appear to be necessity therefor, and when without the intervention the interests of the infant may not be properly guarded. We think that the present case is so exceptional in character as to justify the order of intervention. The executor in the present case is evidently hostile to the interests of the infant. He has resisted an accounting, and when compelled to account claimed that he was only possessed of an insignificant amount of assets. He was charged by the surrogate with a substantial sum, and in arriving at that amount the surrogate excluded from his consideration the assets of the firm, its good will, etc., for which the executor is bound to account. The condition, therefore, which the law contemplates, that the executor ■ will represent and protect the interests of his cestui que trust, wholly fails, for it is evident that the executor does not propose to surrender anything from which the ¡legacy can be paid. The plaintiff in the action does not represent the interest of the infant. Her interest is as administratrix of the estate of her husband, and while doubtless natural love and affection would prompt her to protect the interests of her son, yet her attitude before the court may be one of direct antagonism to his interest. In contemplation of law she.is only engaged in swelling the amount to which her intestate was entitled ; but, so far as appears, the infant received no benefit therefrom, and the amount, if any, which shall be finally ad judged as due the plaintiff will not represent the fund from which the legacy is to one paid, but, on the contrary, may deplete such fund to the infant’s harm. It appears, therefore, that in the present litigation the infant stands without any representation whatever in a litigation, the proceeds of which as shall be adjudged will furnish the fund out of which his legacy will be paid. It is readily seen that the conditions presented are exceptional, and as the infant will be without any representation of his interests unless he be permitted to intervene, we think that the motion should be granted in order that his rights and interests may be properly and fully protected.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion to intervene granted,, with ten dollars costs to abide event.

Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion to intervene granted, with ten dollars costs to abide event.  