Compton v. Hughes

BarNard, P. J.:

The demurrer was properly sustained. The defendant Hughes hired from one Josephine O. B. Webster certain premises in New York at $4,800 per year, and executed to her a covenant to pay that sum. Mrs. Webster died while Hughes was occupying under the lease, and there was rent due. By Mrs. Webster’s will the rents of these premises, during the life of her husband, after paying certain fixed charges thereon, was given to the plaintiff and the defendant Pinto, who is made a defendant because she will not join as a plaintiff. The complaint is therefore in legal effect, brought by the two residuary devisees of the rents, and it avers that the tenant Hughes has not paid his rent. That the executors and trustees have been guilty of neglect in respect to the collection thereof, and refused to sue therefor, and that they have filed their accounts for .settlement, and that the plaintiff had employed a competent attorney to file objections thereto and conduct the accounting, and that this attorney either never filed her objections, or withdrew them after they had been filed without the knowledge or consent of the plaintiff, and that the plaintiff did not know until after the accounting and decree thereon that all the rent had not been accounted for by the executors. The complaint concludes with a prayer that the defendants may severally be adjudged to pay these rents.

No cause of action whatever is shown against the defendant Webster and the defendant McGuire, but they do not object. The defendant Hughes has no interest in the question of the neglect of the executors to possess themselves of the rent and that is the only fact upon which their liability depends. If both of the causes of .action were on contract, one would be such that it would not effectj all the parties, and this defect could be reached by demurrer. (Nichols v. Drew, 94 N. Y., 22.)

But one of the causes of action is for negligence upon the part of •the trustees and executors which is to be classed as a cause of action upon a tort, and as such could not be joined in an action for rent. (Thomas v. Utica and Black River Railroad, 97 N. Y., 245.)

Again the complaint fails to show a cause of action because the rent received has been accounted for. The decree settles the fact so long as it stands. (Adair v. Brimmer, 95 N. Y., 35.) If it does not truly represent the facts proven there should be an appeal or a •motion to open and correct the decree.

The judgment should be affirmed, with costs.

HyKMAN, J., concurred ; Pkatt, J., not sitting.

Order sustaining demurrer to complaint and judgment thereon affirmed, with costs.