Dean v. Chamberlin — 13 N.Y. Super. Ct. 691

Majority

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Dean, plaintiff and appellant v. Chamberlin, defendant and respondent.

Headnote

In an action by one of eleven harbor-masters against another of them, who was appointed by each of them to collect the fees of the eleven harbor-masters, each being entitled to one-eleventh part of all the fees which might be earned, a complaint which stated these facts, and that the defendant accepted such appointment, and agreed with the plaintiff and the others of said harbor-masters severally, and become bound to account to them severally, for such fees as he should collect, and to pay to them severally their respective shares, and which alleged that he had collected frorp persons named, and also from persons unknown to the plaintiff, fees for which he had not accounted, and for which he refused to account, and the amounts of which, in some instances, the plaintiff could not state, and praying judgment that defendant account to the plaintiff, in writing, for all fees collected, and that plaintiff’s share, when ascertained, be paid by the defendant, etc. Held, bad on demurrer, on the ground that there was a defect of parties, and that all the harbor-masters should be made parties to such an action.

(Before Duer, Ch. J., Bosworth, Hoffman, Slosson, and Woodruff, J.J.)

December 26th, 1857

This action came before the court, on an appeal oy the plaintiff from an order made by Mr. Justice Hoffman, sustaining a demurrer to the complaint.

The complaint states that the plaintiff, and the defendant, and nine others, were harbor-masters of the port of Hew York, from the 9th of April, 1850, until the 9th of April, 1855, duly appointed as such, under a statute of the state of Hew York, passed March 16, 1850.

That each of said harbor-masters employed the defendant to collect certain fees which should become due to them pursuant to such act: “ That the defendant accepted the said employment and authority, and undertook and agreed with the plaintiff and the

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others of said harbor-masters severally and respectively, and became bound and liable to them severally and respectively, to account to them severally for such fees as he should collect and receive in the course of the said employment, and to pay to the plaintiff and to the others of said harbor-masters severally, their respective shares and interests in such fees; that the share and interest of the plaintiff in such fees was one-eleventh part thereof; that in pursuance of the said employment and authority, said defendant received a large amount of fees which he had collected, and which were due the harbor-masters aforesaid, under and by virtue of the provisions of the said act, during the holding of said office by said harbor-masters.

“ That at various times the said defendant has paid to the plaintiff sundry sums of money on account of the share and interest of the plaintiff in said fees, and plaintiff supposed at the time when he ceased to be harbor-master, and when he received from defendant said sundry sums of money on account of his share and interest in the fees collected by defendant, that the defendant, had accounted for all the sums of money that he had collected and received for and on account of said harbor-masters, but he has since been informed, and he declares the truth to be, that said defendant has received from Messrs. Ludlam & Pleasants, for harbormasters’ fees, due and payable on the steamers Roanoke and Jamestown, various numerous sums of money during the time when plaintiff was harbor-master as aforesaid, for which he has never accounted to plaintiff, and which he retains unlawfully in his possession; and plaintiff has been informed and believes that other sums of money have been received by defendant for harbormasters’ fees during the time when said plaintiff and defendant were harbor-masters as aforesaid, for which he has never accounted, and which he now unlawfully detains; that plaintiff has requested an account from defendant of all such moneys received by him for the harbor-masters as aforesaid, which defendant has refused to give; that until the defendant shall have rendered an account of the said fees received by him as aforesaid, the plaintiff is unable to specify the precise sum due to him from the defendant for the plaintiff's share of said fees, but he alleges upon information and belief, that upon an accounting by the defendant, it would

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appear that there is still due to the plaintiff, from the defendant, a large sum of money.

“ Therefore the plaintiff demands judgment, that the said defendant account to the plaintiff, in writing and under oath, under the direction of this court, for all sums of money received by him under the employment and authority aforesaid, and state the times respectively when said sums of money were received and the amounts thereof respectively, and the persons from whom received, and the names of the vessels on account of which said sums were received, that the plaintiff’s share and interest therein may be ascertained, and that the balance due to the plaintiff from the defendant by reason of the matters herein above stated may be adjusted and settled according to the plaintiff’s just and lawful rights, and that the defendant may be adjudged to pay to the plaintiff the balance so adjusted and settled, with costs of this action.”

The defendant demurred to the plaintiff’s complaint in this action, and for cause of demurrer showed,

1st. That the complaint does not show sufficient facts to constitute a cause of action.

2d. That there is a defect of parties plaintiff herein.

3d. That there is a defect of parties defendant herein.

The order appealed from decided and “adjudged that there is a defect of parties in the said action, and that the said defendant do have judgment in said action, unless the plaintiff within twenty days amend his complaint as to parties as advised, and in case the said complaint is so amended, the same to be without costs of said amendment.”

From that order the plaintiff appealed.

This is an appeal from an order at Special Term, sustaining a demurrer to the complaint for want of parties.

The action is plainly one for an account. The prayer of the complaint is for an accounting. The plaintiff treats it as an action at law to recover a specific amount, yet admits, in his complaint, that the amount of the moneys collected and received by the defendant, and to one-eleventh of which he is entitled, is unknown to him, and that the amount due him can only be ascertained on

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the rendering of an account by the defendant. It is not the case of a suit to recover an admitted balance or share after an accounting, nor to recover a fixed proportion of a sum certain, as where one of two joint owners of a chattel sells it for a round sum and receives the proceeds, in which case the other may have his action at law. (Cochran v. Carrington, 25 Wend. 409 .)

In an equitable action the general rule is that all persons are to be made parties, if practicable, who have a legal or equitable interest in the subject matter of the suit, and may be affected by the judgment, and who are within the jurisdiction of the court. (2 Story’s Eq. Juris. 741-2; Cooper’s Eq. Pl. 33.) One object is to protect the defendant and prevent a multiplicity of writs.

In Hallet v. Hallet, (2 Paige, p. 19,) Chancellor Walworth states this to be the rule: “ That if it appears, on the face of the plaintiff’s bill, that an account of the whole fund must be taken, and that there are other parties interested in the distribution thereof, to whom the defendant would be bound to render a similar account, the latter may object that all who have a common interest with the plaintiff are not before the court.”

In cases where it would be practically inconvenient to make all who have an interest in the fund parties in fact, the plaintiff, under the old practice, was allowed to file the Tpill in his own behalf and in behalf of all others standing in the same situation with himself, who might elect to come in and be made parties, and bear their portion of the expenses.

In the present case there are nine other harbor-masters, besides the plaintiff and defendant, equally interested in the fund. If one may sue for his proportion, each of the others may also sue.

Under the act under which they were appointed, (March 16, 1850,) the fees collected belonged to all, though each was entitled to an equal proportion. The defendant was appointed by each of them, as is alleged, to collect certain fees and, as is alleged, agreed to account and pay to each one, severally, his proportion. It would be straining the sense of this phraseology, I think, to construe it as an agreement by the defendant to render to each one a separate account of his stewardship. The natural and proper meaning of the undertaking is, that he would render to all who had employed him an account of the moneys he should collect, and pay to each his several proportion. After such an accounting, an assumpsit

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would lie by each for his share. But, if the language be taken literally, still if the court sees that a multiplicity of suits will be avoided by making all parties to a single action, it will require them to be brought in.

As the sum to be divided is not ascertained, each party has an interest in having the exact amount determined. It is true the defendant cannot be made to account for more than he has received, but he has a right to say that he ought not to beputto the proof of that more than once.

If the complaint had alleged that all the other harbor-masters had been paid their proportions the case would be different, but this cannot be inferred; on the contrary, the silence of the complaint on that point, in connection with the allegations which show that others were equally interested with the plaintiff in the fund, and that the defendant has never accounted for what he has received, necessarily implies that he is still indebted to all.

We think the demurrer for defect of parties, well taken.

Order affirmed, with costs of appeal.

Cases cited

Cochran v. Carrington 25 Wend. 409 N.Y. Sup. Ct. p. 694