
    In the Matter of the Accounting of Chase Manhattan Bank, as Trustee, and of Dunbar W. Bostwick et al., as Executors of Marie S. Gilbert, Deceased Trustee, of a Trust Created by Helen C. Bostwick.
    Supreme Court, Special Term, New York County,
    August 27, 1963.
    
      Milbank, Tweed, Hadley £ McCloy (Daniel G. Tenney, Jr. and J. Wesley Hart of counsel), for Chase Manhattan Bank and others, petitioners.
   John A. Mullen, J.

This application for an order to show cause pursuant to article 79 of the Civil Practice Act, involving an express trust, raises the question whether certain parties are necessary to the instant proceeding.

The petitioners are Dunbar W. Bostwick, Albert C. Bostwick and the Chase Manhattan Bank of the City of New York. It is alleged in paragraph 13th of the petition that certain named parties therein are not necessary to this proceeding by reason of the fact that they failed to file objections to the probate of the will of Marie S. Bostwick, and therefore, are not required to be made parties in this proceeding involving an express trust created by Helen C. Bostwick. There is nothing in the statute or cases permitting such a nonjoinder of parties to a trust proceeding.

Section 1311 of the Civil Practice Act permits representation in case of remainder to a class where there is no conflict of interest between a prior remainder interest and a subsequent remainder interest (Matter of Lachlan, 24 Misc 2d 323). However where there is such a conflict, as there is as a matter of law between income interests and remainder interests, there cannot be any representation whatsoever (Matter of Blake, 208 Misc. 22; Matter of Pratt, 188 Misc. 170; Matter of Childs, 129 N. Y. S. 2d 830).

In this proceeding not only are Dunbar W. Bostwick and Albert C. Bostwick representing an income interest but they are also cotrustees and in addition have a remainder interest in the trust. An accounting party who is accounting to himself in another capacity must bring in as added parties those persons for whom he is acting in the second capacity (Fisher v. Banta, 66 N. Y. 468). Therefore the issue of Dunbar C. Bostwick and Albert C. Bostwick by reason of such diversity of interest are necessary parties to this proceeding.

Accordingly the court requires that notice be given to the issue of Dunbar W. Bostwick and Albert 0. Bostwick and since some of said issue are infants I have designated a person to receive service on their behalf in the order signed herewith.  