Opinion
November 6, 1908.
Alexander S. Bacon, for the appellant.
Eugene D. Boyer of counsel [ Charles Strauss, attorney] for the plaintiff, respondent.
Marcel Levy, for the respondent Phil Bear.
Present — INGRAHAM, McLAUGHLIN, CLARKE, HOUGHTON and SCOTT, JJ.
Appellant's grandfather, Abraham Schlesinger, died leaving a last will and testament which was admitted to probate in January, 1898. Plaintiff Baldwin Schlesinger and defendant Leo Schlesinger qualified as executors in January, 1898. Six years thereafter, in February, 1904, no steps having been taken for an accounting, the appellant petitioned the Surrogate's Court to require the executors to file an inventory. An inventory was filed on or about May 3, 1904, verified by Baldwin Schlesinger only. Thereupon appellant petitioned for a further inventory and to require the defendant Leo Schlesinger to verify it. An order was granted on such petition on June 15, 1904. On the same day an order was entered on appellant's petition for a final accounting, and an account was filed on or about August 23, 1904. This was not a final accounting, as it set up that one Phil Bear claimed to be entitled to one-half interest in the business of Leo Schlesinger Co. at the time of the testator's death, and claimed that the testator owned but one-fourth of the assets of said business, and that "on or about the 9th day of June, 1904, an action was instituted in the New York Supreme Court for the county of New York on behalf of said decedent, against Leo Schlesinger as surviving partner of said firm of Leo Schlesinger Co., and against said Phil Bear, which is now pending and undetermined, and the issues of which will probably not be determined before the fall of this year;" and said accounting set up further that no final accounting could be had until after the determination of said action.
The moving papers further set up that this action of Schlesinger v. Schlesinger and Bear had been at issue nearly four years and nothing substantial had been done, and prayed for an order permitting the appellant to intervene as a party defendant; which order having been denied, this appeal is taken.
We are of opinion, upon these papers, that a situation is presented which authorized the court, upon her application, to permit the appellant to intervene as a defendant. While theoretically the executors represent her interests, and so she is not a necessary party to this action, she should be given a standing in court with the opportunity to protect her ultimate interest.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.