
    James B. Andrews, as Testamentary Trustee under the Will of William P. Kirk, Deceased, Appellant, v. Annie L. Kirk, Individually and as Testamentary Trustee under the Will of William P. Kirk, Deceased, et al., Defendants, and Florence Kirk, Respondent.
    (Argued October 1, 1917;
    decided October 16, 1917.)
    
      Andrews v. Kirk, 175 App. Div. 975, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 6, 1916, which affirmed an order of Special Term sustaining a demurrer to the complaint and granting a motion by defendant, respondent, for judgment on the pleadings. The action was for partition. Defendant, respondent, demurred on the grounds: “First. That there was a defect of parties plaintiff, in that Annie L. Kirk, as one of the testamentary trustees of and under the last Will and Testament of William P. Kirk, deceased, had not been joined as a party plaintiff and no reason or excuse had been stated for the failure so to do. Second. That the complaint did not state facts sufficient to constitute a cause of action.” In support of the motion it was contended that in no event could one of the two acting testamentary trustees maintain an action for partition, and that the complaint did not state facts sufficient to constitute a cause of action in that it failed to state facts showing that the sole plaintiff had such an interest or estate in the real property as to authorize him to bring an action for partition.
    
      Edwin C. Mulligan and Charles H. Beckett for appellant.
    
      Harold Swain and Hamilton C. Rickaby for respondent.
   Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Collin, Hogan, Cardozo, McLaughlin and Crane, JJ.  