Hyperlawhypertext legal database Joseph v. Herzig 72 Misc. 475

← Cases

Joseph v. Herzig

72 Misc. 475 Court N.Y. Sup. Ct. English

Delivered by *476 Guy, J.

Contents

Majority

p. 475
Jeanette Herzig Joseph, as Executrix of the Last Will and Testament of Philip Herzig, Deceased, Plaintiff, v. Simon Herzig, Individually and as Executor of the Last Will and Testament of Philip Hertzig, Deceased, Defendant.
(Supreme Court, New York Special Term,
June, 1911.)

Headnote

Executors and administrators — Actions and proceedings in- general — Parties — Beneficiaries.
Parties — Bringing in new parties — Persons who may be joined — — Beneficiaries represented by plaintiff.
In an action by an executrix, for an accounting of the good will of the partnership business in which the testator was interested as one of the partners, against the surviving partner, the beneficiaries under the decedent’s will are represented by the executrix and need not be brought in as parties.
Action for an accounting.
Sherman & Sterling (John A. Garver, of counsel), for plaintiff.
. Abraham G. Meyer (David Leventritt and Harold Uathan, of counsel), for defendant.

Plaintiff brings an action, as executrix under the will of Philip Herzig, deceased, against Simon Herzig, her coexecutor, for an accounting of the good will of the partnership business, which it is alleged that the defendant, as surviving partner of the decedent, had converted to his own use. The defendant 'moves to bring in as defendants the beneficiaries under the decedent’s will, who have made no request to be brought in as defendants. The Court of Appeals has sustained the action as one to compel a surviving or liquidating partner to account for the good will of the business and firm name. Joseph v. Herzig, 198 N. Y. 456 , 460-462. The plaintiff disclaims having brought the action to compel an accounting as executor. The decedent’s will authorized the liquidating partner to purchase the business under certain conditions. Whether or not he complied with those conditions, as to some or all of the beneficiaries, or whether, he committed a devastavit, is the principal matter in issue. The trustee or executrix is the proper representative of an estate, and in the absence of collusion the cestuis que trustent are bound by the trustee’s acts and are not necessary parties. Roberts v. N. Y. El. R. R. Co., 155 N. Y. 32 , 39; Vetterlein v. Barnes, 124 U. S. 169 , 172, 173; Kerrison v. Stewart, 93 id. 155, 160. Assuming that individual beneficiaries may have waived or reduced their right to a recovery, plaintiff as 'their trustee would stand in their shoes, and could recover no more on each beneficiary’s share than such beneficiary could recover if a sole plaintiff. Vohmann v. Michel, 185 N. Y. 420 , 425, 426; Woodbridge v. Bockes, 170 id. 600-603; Matter of Hall, 164 id. 196, 201; Butterfield v. Cowing, 112 id. 486; Ungrich v. Ungrich, 131 App. Div. 24 . All .these questions are triable on the accounting. The answer does not seek to compel any of the beneficiaries under the will to refund or make contribution. Neither party avers any collusion in the conduct of the suit. Without either of these elements no foundation is laid for bringing in the beneficiaries at this late day.

Motion denied.

Cases cited