Garner v. Harmony Mills. GARNER v. THE HARMONY MILLS. N. Y. Superior Court; Special Term, November, 1878. Again, General Term, March, 1879. DEMURRER.-JOINDER OF CAUSES OF ACTION.-REQUISITES OF ORDER OVERRULING a Demurrer.-APPEAL.-INTERLOCUTORY JUDGMENT. CODE OF CIV. PRO., § 1347. Although all the defendants are not jointly connected in every act of a breach of trust alleged in a complaint, but there is a series of acts on their part, produced by the same fraudulent intent which contributed to the injury of the plaintiffs, and the statements are not made as separate and distinct causes of action against the several defendants, and a cause of action is alleged, by which they are all affected, and in respect to which they are necessary parties:-the several matters may be joined in one complaint. The prayer for judgment in a complaint is not demurrable. If the issues presented in a complaint constitute but one subject-matter of action, although the reliefs growing out of the bill and prayed for in respect to the several defendants, are according to their respective liabilities, they are not required to be separately tried by a court of equity. An order overruling a demurrer should give leave not merely to answer, but also to withdraw the demurrer. An order overruling a demurrer is not appealable before judgment (interlocutory or final) thereon.* Interlocutory judgment defined. I. Demurrer to complaint. This action was brought by Harriet H. Garner, widow of Thomas Garner, Jr., deceased, and her daughter, Fanny M. Garner, the only child of Harriet H. and Thomas Garner, Jr., against The Harmony Mills, William E. Thorn, Samuel W. Johnson, John I. Lawrence, and the three infant daughters of William T. Garner, deceased, viz., Marcellite T. Garner, Florence *To the same effect, Cambridge Valley National Bank v. Lynch, 19 Alb. L. J. 360. Garner v. Harmony Mills. J. Garner and Edith M. Garner, for the purpose of securing and protecting a trust of $1,000,000. A concise statement of the complaint is as follows: Thomas Garner, Sr., by a bequest in his will, gave to his son, Thomas Garner, Jr., the sum of $1,000,000, to be paid to him within eighteen months after the father's death. His son, William T. Garner, qualified as sole executor, and by the terms of the trust was bound to make payment of this fund out of his father's estate, which was estimated at more than $6,000,000 at the time of his death, when the $1,000,000 was locked up in the firm of Garner & Co., composed of William T. Garner and Thomas, Jr. After the expiration of eighteen months, and before the legacy had been paid, Thomas Garner, Jr., died, leaving to his wife and daughter, the plaintiffs, the legacy of $1,000,000, independent of his interest in the firm, and appointed his brother, William T., and the defendant, Thorn, executors and trustees. They both qualified, and became chargeable with the responsibilities of the trust to collect and receive, and William T. as executor of his father's will to pay, but instead of doing so, the money was retained in the firm, and never separated from the estate of his brother Thomas. When Thomas, Jr., died, the firm was carried on by William T. and the defendant, Johnson, and the former, as executor of his father, by entries in the firm's books, debited the estate of his father, and credited the estate of his brother with the amount of the legacy, by giving to himself and Thorn, as trustees, a mortgage of $90,000 on property belonging to him in Monroe County, and procuring the Harmony Mills (a manufacturing company of which he was the president, and owner of the stock) to execute another bond for $710,000, out of the $990,000 to himself and Thorn as trustees of his brother's estate, and charged the rest as Garner v. Harmony Mills. payments, which, according to the allegations of the complaint, had not been made. This was alleged to be an improper investment of trust funds; that the property covered by the first mortgage of $90,000 was part of the estate of Thomas Garner, Sr., and acquired by William T. as residuary devisee under his father's will; that the Harmony Mills was in name a corporation, but owned by Garner & Co., and that the mortgage thereon was not lawfully executed, and that both pieces of property were subject to two mortgages of equal amounts without priority, the one over the other, to the estate of Anna Garner, who, by the will of Thomas Garner, Sr., was also bequeathed an equal legacy of $1,000,000; that the property covered by the mortgages was wholly inadequate, the security precarious, and the whole trust fund imperiled, and that the object of the whole arrangement was not to take care of the trust but to appropriate the trust money for the use of Garner & Co.; that the death of William T. Garner left the whole trust property and his whole estate, including the $1,000,000 of the trust fund, in the hands of Johnson, as surviving partner, subject to the perils of the business, under a will by which, during the lifetime of a daughter named, the business is to be carried on by Johnson, as survivor, and by the executors, Thorn, Lawrence, and Johnson. The complaint then set forth the legal rights of the plaintiffs and the liabilities of the defendants in respect to the trust fund, and acts of malfeasance and hostility on the part of the defendant, Thorn, as trustee, and that he was chiefly concerned to promote the interest of Garner & Co. instead of that of the trust, and concluded with a prayer for relief in various forms adapted to the liability set forth in the complaint. Separate demurrers to the complaint were inter Garner v. Harmony Mills. posed by all the defendants except the infant children of William T. Garner. By these demurrers it was claimed that there were, at least, nine distinct and ununitable causes of action joined, including as defendants the representatives of several different wills. Joseph H. Choate and Hugh L. Cole (Cole & Kingsford, attorneys), for plaintiff.-There is no improper joinder of causes of action in the complaint. The subject matter of the suit is the trust, and the cause of action is the spoliation of which it has been the subject. The whole matter of multifariousness is a matter of discretion in the court, to be applied to the circumstances of each particular case as it transpires (Brinkerhoff v. Brown, 6 Johns. Ch. 139; Fellows v. Fellows, 4 Cow. 682; Whaley v. Dawson, 2 Sch. & Lefr. 370; Getty v. Devlin, 54 N. Y. and p. 9 in 69 Id.; Story Eq. Pleadings, §§ 285, 285a, 286, 286a, and cases cited, and also 278a, and $$ 530-535. The demurrers interposed by the defendants and their arguments in support of them seem to rest upon the two fallacies of confounding distinct prayers for relief with distinct causes of action; and of confusing the question of proper or necessary parties to a suit in equity with that of the misjoinder of causes of action. Luther R. Marsh (Marsh & Wallis, attorneys), for defendants Thorn and Harmony Mills. Homer A. Nelson, for executors of Garner. SPEIR, J.-[After stating the facts.]-It is apparent from the foregoing concise statement of the complaint, that the one subject matter of the action is the trust, and the cause of action, the several violations and misappropriations of which it has been the subject. The object of the suit is a legitimate one, and peculiarly appeals to a court of equity to accomplish its purpose. If the allegations are true, and as such they are to be taken on this demurrer, this is an unjustifiable and inexcusable disregard of the plain performance of a duty voluntarily assumed by executors and trustees, and a willful and fraudulent appropriation by them and the other defendants of funds devoted in terms for the protection and support of the beneficiaries of the trust. It is clear that the plaintiffs are entitled to the protection and relief of the court. The only question here is, whether they must seek it by separate suits against each of the individuals implicated in the transactions, or whether they are at liberty to bring them all into court in one suit. The complaint recites but one connected history of this trust fund. It begins with its origin under the will of Thomas Garner, Sr., and comes down in one unbroken line through the various trustees and other defendants to the present time. Although it appears that all of the defendants were not jointly connected in every act of wrong, there are a series of acts on the part of the persons concerned in its management, and produced by the same fraudulent intent which contributed to the injury of the plaintiffs. The question is, whether the several matters charged are so distinct and unconnected as to render the joining of them in one bill a ground of demurrer. Chancellor KENT, in Brinkerhoff v. Brown, 6 Johns. Ch. 139,—a leading case-says, after citing several cases: "The principle to be adduced from these cases is that a bill against several persons must relate to matters of the same nature and having a connection with each other, and in which all the defendants are more or less concerned, though their rights in respect to the general subject of the case may be distinct." Again he says: "The remedy would of course be varied and adapted |