Opinion
November 4, 1910.
Sidney Wallach, for the appellant.
Albert R. Lesinsky, for the respondent.
Appeal from an order denying plaintiff's motion for judgment on the pleadings. The motion tests the sufficiency of a demurrer to the complaint interposed by the defendant Milton M. Dryfoos, individually.
The plaintiff and the defendants are the executors and trustees under the last will and testament of Karl M. Wallach, deceased, and it is manifest that their relations are inharmonious. The complaint contains eight causes of action, each of which alleges that the testator in his lifetime had loaned certain sums of money to the defendant Dryfoos. The first cause of action sets forth an agreement on the part of Dryfoos to repay a sum of money specified in that cause of action upon a given day, and specifically alleges that said defendant had not repaid it. The other seven causes of action do not set forth an agreement to pay upon any given day, but, after stating the amount loaned, allege "which the said defendant Milton M. Dryfoos promised and agreed to repay, no part of which has been paid, and at the time of the death of said testator and ever since there has been wholly due and owing by the said Milton M. Dryfoos to the testator" the sum specified. The demurrer, in so far as it attacked the general sufficiency of the complaint, was sustained upon the ground that as to seven of the causes of action pleaded the complaint was defective in not showing, by allegations of fact, that the demands are due. The action being for money loaned, I do not understand that it was necessary to allege that the defendant had specifically agreed to repay the loan on any particular date. The essential allegations of the complaint in such an action are: (1) the loan, (2) the promise to repay, and (3) non-payment, all of which are sufficiently alleged in the present complaint. Since no agreement is alleged as to the time for the repayment of the loan, it must be inferred that the loan was made, as many loans are, without such an agreement. In such a case the loan is repayable at once, or whenever the lender chooses to demand it, and the case is not one in which a demand must be made before suit, since the bringing of the action is itself a sufficient demand. ( Clute v. McCrea, 1 N.Y. Supp. 96.) But even if it was necessary to allege that the demands are due, otherwise than by alleging non-payment of the loan, we think that the plaintiff's allegation in that regard is sufficient. The allegation is that "at the time of the death of said testator and ever since there has been wholly due and owing" from the defendant the sum sued for. This is a sufficient allegation that the sum sued for is due and payable, coupled, as it is, with the statement of facts from which the law will imply a liability. In Allen v. Patterson ( 7 N.Y. 476) the action was for goods sold and it was alleged, after pleading the sale and promise to pay, that "there is now due them from the defendant" the sum sued for. It was held that by the use of the word "due" the pleader sufficiently alleged that the money sought to be recovered had become payable, or that the time when it had been promised to be paid had elapsed. A similar allegation was contained in a complaint, the sufficiency of which was upheld in Goodman v. Alexander ( 165 N.Y. 289). The rule deducible from these authorities is that when the complaint sufficiently alleges facts showing an actual or implied promise on the part of the defendant to pay, it is sufficient to allege that the amount sued for is "due" at the time the action is brought, although the bare allegation that a sum of money is due will not justify the omission of the allegations necessary to establish the fact of an indebtedness. If the sum owed has not become due so that a cause of action has not accrued when the action is commenced that objection must be taken by answer and cannot be raised by demurrer unless the fact appears upon the face of the complaint. ( Smith v. Holmes, 19 N.Y. 271.) We conclude, therefore, that each count of the complaint sufficiently states a cause of action. The demurrer further challenges the complaint for a defect of parties plaintiff in that the plaintiff's coexecutors are not joined as parties plaintiff, and no sufficient reason is given for not joining them. The action is brought in equity and the plaintiff seeks a judgment establishing the indebtedness of the respondent to the estate. That such an action may be maintained by one executor against a coexecutor is well settled. ( McGregor v. McGregor, 35 N.Y. 218; Rogers v. Rogers, 75 Hun, 133.) In such an action the court, if it finds that the debt exists, can make proper provision by the decree for its payment and disposition. The Code does not require that a party who should be a plaintiff must be asked to become such before being joined as defendant. Its requirement is that "if the consent of any one, who ought to be joined as a plaintiff, cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint." (Code Civ. Proc. § 448.) Undoubtedly the simplest way to determine whether a person will become a party plaintiff is to ask him, but it is not necessary to do so when it appears that such a request would necessarily be futile. The complaint alleges that the defendants Breinchen Wallach and Dina W. Block are under the control of the defendant Dryfoos and have had absolutely nothing to do with any of the business affairs of said estate, except as instructed and guided by said Dryfoos; that since the death of the testator the defendants have become hostile to plaintiff, and that the plaintiff's coexecutors have been made party defendants to this action by reason of their hostility to the plaintiff and the fact that they are under the control of said Dryfoos. In an action of this character it is of no real importance whether the coexecutors are plaintiffs or defendants, and the facts as to their hostility to plaintiff and subserviency to Dryfoos being admitted by the demurrer, furnish a sufficient reason for joining them as defendants without going through with the obviously idle ceremony of asking them to become parties plaintiff. ( Brinckerhoff v. Bostwick, 88 N.Y. 52, 59; O'Connor v. Virginia Passenger Power Co., 184 id. 46, 52.) We are, therefore, of the opinion that the complaint was sufficient and that plaintiff's motion for judgment should have been granted. The order appealed from will consequently be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the respondent, however, in accordance with the practice now established in this department, to withdraw his demurrer and answer within ten days upon payment of the foregoing costs and the costs of the action to date.
INGRAHAM, P.J., CLARKE, MILLER and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to respondent to withdraw demurrer and answer within ten days upon payment of said costs and the costs of the action to date.