Opinion
December 6, 1918.
Walter Jeffreys Carlin, for the appellants.
William F. Connell, for the respondent.
This presents a question of the right of two tenants in common to have an accounting of rents collected by a cotenant. Here the executrix's management of the properties leaves rental periods of from two to six years unaccounted for. The Surrogate's Court would be without jurisdiction of such accounting ( Matter of Dunn, 63 Misc. Rep. 179; Matter of Spears, 89 Hun, 49), although one of the briefs intimates that the executrix sought to account for such rents with her final accounting. Reading together sections 446 and 448 of the Code of Civil Procedure, we have the simple rule that persons having an interest in the subject-matter of the action may join, and persons united in interest must be joined as plaintiffs. If, however, this be considered as an action at law, the demurrer was good, since it is unquestioned that two tenants in common cannot join in assumpsit for an account, because the interests are several, and not joint. (11 Ency. of Pl. Pr. 768; Sturton v. Richardson, 13 M. W. 17; Farrar v. Pearson, 59 Maine, 561.)
It was further contended that this complaint was bad for not averring under Code of Civil Procedure, section 1666, that "defendant `has received more than [her] own just proportion.'" It was because anciently a writ of account did not lie against a cotenant in common unless such tenant had been particularly appointed a bailiff for the plaintiff, that the statute of 4 Anne (Chap. 16, § 27), passed in 1705, and entitled: "An act for the amendment of the law, and the better advancement of justice," gave this action where a tenant in common had received "more than comes to his just share or proportion." ( Wheeler v. Horne, Will. 208. See Sherman v. Ballou, 8 Cow. 304, 311.) This statute, re-enacted in New York by section 2 of chapter 4 of the Laws of 1788 (1 R.L. 90, § 2) and section 9 of title 5 of chapter 1 of part 2 of the Revised Statutes (1 R.S. 750, § 9), is preserved in the Code of Civil Procedure, section 1666. Obviously a plaintiff ignorant of what rents have been received, cannot bring himself under this statute.
Hence, as an action for money had and received, an account of these rents can only be enforced by separate actions by each tenant, with consequent double costs. Such a situation clearly shows the difficulty, expense and inconvenience of the remedy at law, and, therefore, furnished a clear basis to sustain the complaint as one in equity. Indeed, such accounting is a most ancient head of equity as between tenants in common. (Story Eq. Juris. [14th ed.] § 622; 2 Pom. Eq. Rem. § 933; Wright v. Wright, 59 How. Pr. 176; 4 Kent Com. 359, note; 4 Pom. Eq. Juris. [3d ed.] § 1421, note 3; Leach v. Beatties, 33 Vt. 195, 200.) The cumulative remedy under the statute of Anne cited, does not bar resort to equity. ( Scott v. Guernsey, 48 N.Y. 106, 124.) Apparently the inability of the plaintiffs to join at law makes a case of equitable relief. (See Ludlow v. Simond, 2 Caines Cas. 1.)
Niehaus v. Niehaus ( 141 App. Div. 251) was not a case of tenants in common. It was by a wife against her husband as tenants by the entirety, for an account of the income or issues of a farm. The wife averred that the husband had collected issues and profits for two years, but had left unpaid the taxes for 1908 and 1909. Without showing that some tenant had paid rent, the bare averment that defendant had not accounted for "rents, issues and profits," might mean only that he had taken the crops and farm produce so that no case was made for an accounting by two years' farm occupancy. Use and occupation of the common property is not a matter of accounting between tenants in common ( Rich v. Rich, 50 Hun, 199; Adams v. Bristol, 126 App. Div. 660, 662); and a fortiori between man and wife as tenants by the entireties. While great weight should be accorded to the views of Mr. Justice SCOTT, his language must be limited to the point there determined. Other well-considered decisions have not followed him. ( Maekotter v. Maekotter, 74 Misc. Rep. 214. See Gedney v. Gedney, 19 App. Div. 407; Myers v. Bolton, 89 Hun, 342; 157 N.Y. 393.)
Before the first Constitution of this State, adopted April 20, 1777, equity had concurrent jurisdiction of such suits for accounting. Baron Comyn's Digest, published in 1762, declared as settled in chancery that "A joint-tenant or tenant in common, c. shall have an account in equity, against his companion, for his share of the profits of an estate." (Com. Dig. art. Chancery, 3 V 6 [ed. 1793], 540.) This removes any possible scruple from article 41 of the first Constitution, which declared inviolate jury trial "in all cases, in which it hath heretofore been used in the Colony of New York." That a defendant tenant in common can hold off her two cotenants, and force them to bring separate suits at law because they have no joint remedy, is precisely a situation for equity to interpose and, in one suit, settle the whole matter.
I advise, therefore, that the order appealed from be reversed, with ten dollars costs and disbursements, and plaintiffs' motion for judgment be granted, with ten dollars costs, with leave, however, to defendant within twenty days to withdraw her demurrer and to answer upon payment of costs.
JENKS, P.J., BLACKMAR, KELLY and JAYCOX, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and plaintiffs' motion for judgment granted, with ten dollars costs, with leave, however, to defendant within twenty days to withdraw her demurrer and to answer upon payment of costs.