Douglas v. Leonard — 39 N.Y. St. Rep. 179

Majority

p. 179

John L. Douglas, Resp’t, v. William H. Leonard, App’lt.

(City Court of New York, General Term,

Filed April 24, 1891.)

Headnote

Parties—Non-joinder.

Plaintiff was employed as an accountant in settling up the affairs of an estate by two executors, subject to the approval of a third executor, who thereafter consented, and throughout his employment he consulted with

p. 180

all three executors, and the services rendered by him were for their benefit. Held, that he could not recover in an action brought for such services against one of the executors alone, another being living.

Appeal from, a judgment for plaintiff, entered on a verdict of a jury, at a trial term. '

Edwards & Odell, for app’lt; W. W. Badger, for resp’t.

—This action was brought to recover for services as an accountant.

George W. Parsons, Mrs. Reed and defendant were executors •of the will of Ebenezer Reed, deceased, and Parsons and defendant were trustees under the same will.

It appears that plaintiff and Parsons were brothers-in-law, and. occupied offices in the same building.

Plaintiff and defendant met at Parsons’ office, and the subject-of an accounting and proper examination of the affairs of1 the Reed estate and other matters were discussed between plaintiff, Parsons and defendant, and plaintiff was employed subject to .approval by Mrs. Reed, who subsequently consented to "such employment. At the close of plaintiff’s case defendant moved for a ■dismissal of the complaint; first, because there was no personal or individual employment of the plaintiff by the defendant; second, that the proofs show that the employment of the plaintiff, if any, was by Parsons, Mrs. Reed and defendant, and Mrs. Reed being alive, should have been joined, which motion was denied, and defendant excepted. We think the trial justice erred. The motion was a proper one and should have been granted.

Plaintiff’s testimony and exhibits show that, throughout his ■employment, he consulted with Parsons and Leonard, and communicated with Mrs: Reed, and that the services rendered by him were for their benefit. If there was any employment, it was by Parsons, Mrs. Reed and the defendant.

•For these reasons the judgment must be reversed and new trial ordered, with costs.

Ehrlich, Ch. J., concurs.