
    Margaret Budd, Plaintiff, v. Elizabeth Hardenbergh, Individually, Etc., Defendant.
    (Supreme Court, New York Special Term,
    October, 1901.)
    Accounting — When one heir at law and next of kin may sue for an accounting of the ancestor’s estate — Parties — Demurrer determinable solely on the facts pleaded — Misjoinder of causes of action.
    Where an intestate’s personal property and rents. have been collected by his administrator and, the latter having died without accounting, his executrix collects other rents falling due upon the real estate of the intestate, one of the heirs at law and next of kin of the intestate may sue for all others similarly situated to compel the executrix to account, both in her individual and representative capacities, for said property and need not make the other heirs and next of kin parties where they are numerous and reside without the State of New York.
    It is not a ground of demurrer to a second amended complaint that a prior amended complaint shows that another action for the same cause oí action is pending between the parties, as the demurrability of a pleading must be determined solely upon the facts in it.
    It is not a ground of demurrer, for misjoinder of causes of action, to a complaint in an action to compel a woman to account for moneys presumed by law to be in her possession that she holds part of them as executrix and part as an individual, as such a condition of affairs does not create two causes of action.
    Demurrer to amended complaint.
    George Walton Green, for plaintiff.
    Wetmore & Jenner, for defendant.
   Truax, J.

The plaintiff is one of the heirs-at-law and next of kin of James B. Hardenhergh, deceased, suing in behalf of herself and all other persons similarly situated, and brings this action against the defendant individually and as executrix of John A. Hardenhergh, late administrator of said James B. Hardenbergh, deceased, for'an accounting of the personal estate of said James B. Hardenhergh, deceased; for an accounting for the rentals of certain premises owned by said James B. Hardenhergh, deceased, which rentals were collected by said John A. Hardenbergh after the death of the said James B. Hardenhergh, and for an accounting for the rentals of said premises collected by the defendant since the death of the said John A. Hardenhergh. The defendant demurs to the first cause of action on the ground that the next of ldn of said James B. Hardenhergh, deceased, other than the plaintiff, are not made parties. She álso demurs to the second and third causes of action on the ground that the heirs-atIaw of the said James B. Hardenhergh, deceased, other than the plaintiff, have not been made parties, and she further demurs on the ground that a prior amended complaint shows that another action for the same cause is now pending between the parties. The defendant also demurs to the whole of the second amended complaint on the ground that there is an improper joinder of causes of action not authorized by section 484 of the Code of Civil Procedure. The demurrer that a prior amended complaint shows another action for the same cause between the same parties is not well taken. Only the facts which appear on the pleading itself can be considered in determining the question whether the pleading is or is not demurrable. I am of the opinion that the plaintiff may maintain this action, suing, as she does, for her-self and for others similarly situated, when it appears, as it does, in this case, that the others referred to are many in number and reside without the State of New York. It was held in McKenzie v. L’Amoureux, 11 Barb. 516, that an action may be brought by one or more of several legatees in behalf of themselves and others against the personal representatives of the testator and the residuary legatees and devisees for an account of the personal estate and of the debts, legacies, etc., and to have the real estate sold and the proceeds, together with the personal estate, applied in-payment of the debts and legacies. In that case it was also held that when the question involved is one of common or general interest the action may be brought by one or more for the benefit of all who have such common or general interest without showing that tiie parties are very numerous or that it would be impracticable to bring them all before the court. My attention has been called to Leavy v. Leavy, 22 Hun, 499, and Petrie v. Petrie, 7 Lans. 90, in which case it was in effect held that in an action to compel an accounting all persons interested in obtaining an accounting must be made parties. It is to be noticed that in those cases it does not appear that the plaintiffs brought their actions in behalf of themselves and all other persons similarly situated, and for this reason those cases are not applicable to the present case. It is the duty of the executor to account without compulsion, and on the failure of an executor to do what he ought to do, this court should not put unnecessary burdens upon persons who have been injured by the neglect of the executor. I am also of the opinion that there has been no improper joinder of causes of action. The subject of the action is the failure of the defendant to account for certain moneys which the law supposes to be in her possession. The fact that part of such moneys-is in her possession as executrix and another part in her possession as an individual does not make two causes of action. The demurrer is overruled, with costs, with leave to defendant to withdraw demurrer and answer on payment of costs.

Demurrer overruled, with costs, with leave to defendant to withdraw and answer on payment of costs.  