M'Mahon, adm'r, &c., of Ruth S. Harrison, dec'd, agt. Allen.

require other parties to be brought in for the protection of his rights; but this is his own privilege, and he may waive it.

Causes of action, seeking to charge the defendant individually, and also as ex

ecutor, cannot be united.

Special Term, Nov., 1855.

THIS was a motion for leave to file a supplemental complaint, alleging, among other things, as additional matter to the original complaint, that, April 26th, 1850, the plaintiff was appointed assignee of Solomon Kipp, trustee of Ruth S. Harrison, and that, April 22d, 1853, the defendant was appointed executor of John Harrison, deceased.

The action was commenced May 7th, 1850, to recover moneys alleged to have been received by the defendant before the 10th of March, 1850, while acting as agent of John Harrison, (now deceased,) executor of Ruth S. Harrison, his wife. Subsequent to the commencement of the action, the will of John Harrison was admitted to probate, and the letters testamentary thereon issued to the defendant. The defendant denied the receipt of the money as alleged. He also insisted, that what money he had received as agent of John Harrison, executor, he was not liable to account for to the plaintiff.

The issues were referred, in February, 1852, to Stephen Cambrelling, Esq., as sole referee.

After the plaintiff closed his proofs, the defendant moved to dismiss the complaint. The referee decided the defendant was not liable; but intimated that he might be liable in his representative capacity; and recommended an application to the court to bring him in as a defendant in that capacity.

It appeared, upon the motion, that on the 12th of September, 1854, the plaintiff commenced an action also against the defendant as executor of John Harrison, to recover the moneys claimed in this action.

DENNIS M'MAHON, JR., and

RALPH LOCKWOOD, in support of the motion,

Cited Pendleton agt. Fay, 3 Paige, 204; Egar agt. Price, id. 333; Lawrence agt. Bolton, id. 294; Green agt. Bates,

M'Mahon, adm'r, &c., of Ruth S. Harrison, dec'd, agt. Allen.

7 How. Pr. R. 296; Doolittle agt. Erskine, 10 Vermt., 265; Carlton agt. Carlile, 5 Madd. 427; Welford's Eq. Pl. 188; Code of Procedure, §§ 402, 468, 471, 122, 144, 147, 148; Muller agt. Canville, 5 Russ. 42; Johnson agt. Snyder, 7 How. Pr. R. 395; Hornfager agt. Hornfager, 6 id. 13: Beck agt. Stephane, 9 id. 193; Colt agt. Lamer, 9 Cowen.

ALBERT MATHEWS, for the defendant,

Made the following points:

First. The gross laches of the plaintiff in making this application forbid its being granted.

I. All the facts were known to him before filing his original complaint, except one, and that one (although he prevented it occurring before this suit was commenced) was known to him in April, 1853, and is immaterial, if the plaintiff's theory is correct, and no excuse is pretended for the delay. (See Code, § 177; Pendleton agt. Fay, 3 Paige R. 204; Rogers agt. Rogers, 1 id. 424; Whitmarsh agt. Campbell, 2 id. 67; Verplank agt. Merchants' Ins. Co., 1 Edw. 46; Pedrick agt. White, 1 Metcalf R. 76.)

II. This court has refused a discovery of books and papers, on the ground of laches in the application. (Edmonds agt. Jackling, Gen. Term., 1854.)

III. The superior court has refused security for costs, for same reason, although the statute seems to leave no discretion to refuse. (Buckley agt. Florence, 1 Duer, 705.)

IV. It rests in the discretion of the court to allow a supplemental complaint in a proper case; and the plaintiff, by his delay, has forfeited all claim to an exercise of that discretion. in his favor. (Code, § 177.)

(a) Section 122 of the Code is inapplicable, as it is restricted to cases when the acts proposed "can be done without prejudice to the rights of others," and "when a complete determination. of the controversy cannot be had without the presence of other parties."

Second. There is another action pending against the defendant, now proposed to be made a party for the same cause

M'Mahon, adm'r, &c., of Ruth S. Harrison, dec'd, agt. Allen.

of action, now proposed to be incorporated in the supplemental complaint. This is a good defence in abatement. (Bendenbagh agt. Cocks, 19 Wend. 207.)

I. This would split up the demands.

Third. The proposed supplemental complaint is based upon new facts upon which (if the plaintiff's theory be correct) a judgment may be had without reference to the original complaint. The original complaint is wholly defective, and shows no cause of action against the defendant therein. In either case, the plaintiff should commence a new action. (Smith agt. Edmonds, 10 Legal Obs. 185; Milner agt. Milner, 2 Edw. V. C. R. 144; Lloyd agt. Brewster, 4 Paige, 538; Byrne agt. Byrne, 2 Drury & Warren, 71; Coleman agt. M'Murde, 5 Rand. R. 51.)

I. When the plaintiff commenced suit he had no cause of action against any person, no executor having been appointed of the will of John Harrison.

Fourth. To allow this complaint, would be to authorize an action contrary to the statute, indirectly against the defendant Allen, as executor in his own wrong, of the estate of Mrs. Harrison, while another executor was acting. (Babcock agt. Booth, 2 Hill R. 81; Murr agt. The Leake & Watts' O. A., 3 Barb. Ch. R. 477; 2 R. S. 449, § 17.)

Fifth. To entitle the plaintiff to file a supplemental complaint, it must be in respect of the same title in the same person, as stated in the original bill. Here it is totally different. It is a new case. (Story's Eq. Pleadings, 339; Erskin agt. Sethbridge, Cooper's Chancery Cases, 43; Pratt agt. Bacon, 10 Pick. R. 122.)

Sixth. To allow this supplemental complaint to be filed, would enable the plaintiff, if successful, to gain a priority over other creditors of John Harrison, and change the order of the administration of his assets.

I. If any claim is made against Allen individually, this illegal consequence would result.

II. If no claim is made against Allen, he is not a proper party to the new or supplemental action.

M'Mahon, adm'r, &c., of Ruth S. Harrison, dec'd, agt. Allen.

Seventh. By allowing Allen to be thus sued individually, he is deprived of his set-off, which he is entitled to in making up his accounts between himself individually and as executor. (Mercin agt. Smith, 2 Hill, 213; 2 R. S. p. 355, § 23.)

Eighth. The claim against the defendant, as executor, is a claim "against a trustee," and cannot be united with a claim against him individually. (Code, § 167; Dox agt. Backerstone, 12 Wend. 543.)

I. The causes of action are wholly distinct, and the complaint multifarious. (Davoue agt. Fanning, 4 Johns. Ch. R. 199; Butts agt. Greening, 5 Paige R. 254; Murray agt. Hay, 1 Barb. Ch. R. 59; Jackson agt. Forrest, 2 id. 576; Story's Eq. Pleadings, 274 (a).)

Ninth. The supplemental complaint makes an entirely new issue, and, if permitted, it should only be on payment of all costs; and it is far better the plaintiff's complaint be dismissed with costs, and he left to prosecute the suit he has already commenced against the defendant, as executor of John Harrison, for this claim and others. (Verplank agt. Merchants' Ins. Co., 1 Ed. V. C. R. 141; Smith agt. Smith, Cooper's Ch'y Cases, 141; 2 Sim. & Stew. 113.)

NOTE. The case of Colt agt. Lanier, (9 Cowen,) cited by plaintiff, was a case of partnership and of a devastavit. The funds of the estate were, in part, fraudulently converted by Colt, the surviving partner, after decease of the executor, [$4,000 U. S. stock, 18th Feb., 1815, p. 332, ] and in part appropriated by a devastavit by said Colt. [pp. 342, 343.]

WOODRUFF, Judge. The plaintiff herein is prosecuting this suit against the defendant individually, to recover moneys which he alleges the defendant received while acting as the attorney in fact of John Harrison, executor of Ruth S. Harrison, whose estate he claims as administrator de bonis non, &c., and as successor to Solomon Kipp, trustee, &c.

Pending this suit, and on the 22d April, 1853, letters testamentary have been granted to the defendant, upon the will of the said John Harrison, and thereupon the plaintiff commenced a suit against the defendant, as the executor of John Harrison,

M'Mahon, adm'r, &c., of Ruth S. Harrison, dec'd, agt. Allen.

to recover (among other property) the same moneys for which the present suit is brought.

The plaintiff, nevertheless, proceeds with this action against the defendant, as an individual, brings the cause to trial, and closes his proofs; and now, after a motion to dismiss his complaint on the ground that the defendant (as an individual) is not liable to the plaintiff for moneys he received as the agent for the deceased executor, John Harrison, the plaintiff, two years and four months after he had full notice of all the facts, moves for leave to make the executor of John Harrison a party defendant. It seems to me, that if there were no other reasons for denying the motion, the delay would be sufficient.

But there are other reasons which constrain me to such denial, which may be very briefly stated.

If the plaintiff is entitled to recover at all in this action, he was so entitled when this suit was commenced. If he was not so entitled when he commenced the suit, facts subsequently occurring cannot be introduced, either by amendment nor by supplemental complaint, to make a title to recover-so that the taking of letters testamentary, by the defendant, does not give the plaintiff a right to recover in this action, if he had not that right before such letters were taken. If it was essential to the right of recovery that the representative of John Harrison should be before the court, the plaintiff should have waited until such a representative was appointed. And it would not be just to the defendant, who, in this view of the subject, has a perfect protection, to permit the plaintiff, in effect, to bring a new suit, after he had gone to trial and discovered that he cannot succeed, by allowing him to amend his proceedings-certainly not without requiring him to pay all the cost to the present time, and opening the entire defence.

It is urged that a complete determination of the controversy cannot be had without the presence of the executor of John Harrison. Why not? The judgment of this court will be entirely effectual to settle forever, and without any prejudice to the executor of John Harrison, or any other third person living, the question, whether this defendant, individually, owes the