
    Eleanor M. Hamilton, an Infant, Etc., Plaintiff, v. J. Eberhard Faber et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1900.)
    1. Action by a beneficiary for an accounting, etc.— All trustees necessary parties — Demurrer to complaint.
    Where a beneficiary sues for an accounting by his trustees and for the removal of one of them, all of them, who have acted, and who have not been discharged, are necessary, parties to the action.
    8. Same — Defense of another action pending not established.
    The defense of another action pending between the same parties for the same cause cannot be made a ground of demurrer to such a complaint where it does not show that the parties are the same in both actions or proceedings, nor that the whole purpose of the second action or proceeding was attainable in the first.
    Issues of law upon demurrer to complaint.
    Thomas Allison and Morris A. Tyng, for plaintiff.
    George ZabrisMe, for defendant-demurrant.
   Bischoff, J.

The action is brought by a beneficiary for an accounting by trustees, and, as part of the relief, the removal of one is sought, upon sufficient allegations. Irrespective of the sufficiency of the allegations of the complaint, as to other matters touching the acts of the demurring trustees, a cause of action, as against them, is stated, for they are necessary parties to the action to remove their co-trustee, and, at least, so far, the complaint is proof against their demurrer.

In such an action, the rule is that all trustees who have acted as such, and have not been discharged, should be joined as parties. 2 Perry Trusts (5th ed.), § 876.

One demurrant takes the further ground that the pendency of a special proceeding for his discharge, which is set forth in the •complaint, discloses “ another action pending,” but clearly this ground is untenable.

Rot only does the complaint fail to show that the parties’ to the proceeding are the same (Code, § 488, subd. 4), but it is disclosed "by the allegations that the plaintiff cannot obtain complete relief in that proceeding, while, to render this ground of demurrer availing, it must appear that “ the whole purpose of the second suit was attainable in the first.” Parker v. Selye, 3 App. Div. 149.

The claim that the executors of Charles Kennedy Hamilton (through whom these trustees derived title to the corporate interests .as to which mismanagement is charged) should be made parties, appears to be without foundation.

Assuming, with the demurrant, that these executors retained some interest in the properties, no claim is made against them, nór in their favor, by the plaintiff, to recover property in their behalf. The plaintiff seeks only her share in the avails of properties which the executors did transfer to the trustees, and the presence of the •executors is certainly not necessary to a determination of what the trustees received.

Demurrers overruled, with costs; leave to plead over on usual terms.  