#### George D. Stibbard and George Hoadly, Trustees, Etc., Plaintiffs, *v.*William Jay, Administrator, Etc., et al., Defendants.

(.Supreme Court, New York Special Term,

February, 1899.)

1. Pleading — How far one defendant may strike irrelevant matter from the answer of another.

The ground, upon which one defendant may be permitted to strike from the answer of another affirmative allegations and prayers for relief, is that these depart from the domain of controversy which has been fixed by the lines of the complaint; but, in advance of the trial, such irrelevant matter can be eliminated by a motion only, as a demurrer between co-defendants is inadmissible.

*261
      *3.*Same — Counterclaim of a defendant remainderman alleging that a codefendant remainderman has been overpaid his share of the fundi in remainder.

Where the main subject of an action, as presented by the complaint, is the selection of distributees for a fund, in the hands of a domestic trust company, representing one-third of the proceeds of the sale of «certain foreign real estate of a resident testator, said real estate being a part of a million dollar fund given in trust by his will with a disposition over, administrators and trustees of a deceased son of the testator, whose right to one-third of the million dollar fund is denied by the other two remaindermen, may properly interpose a counterclaim by which the said administrators and trustees allege that not only the plaintiffs, as trustees for one of the remaindermen, but also the co-defendant remainderman have been paid large sums on account of their interests in the million dollar fund and that the amounts thereof are not known to the administrators, and the latter may properly demand an accounting to the end that their estate may receive the whole fund now in the hands of the trust company and such an additional sum as may be necessary to make good to their estate its one-third of the million dollar fund.

Motion by one defendant to strike out affirmative allegations and prayers for relief from the answer of a codefendant.

John S. Melcher, for defendant Ellen S. Melcher.

Flamen B. Candler and Robert W. Candler, for defendants Paget and Jay.

Russell, J.

The power of a motion by one defendant to strike ■out affirmative allegations'and prayers for relief from the answer of a codefendant arises from-the departure of the allegations complained of from the domain of controversy drawn by the lines of the complaint. Jones v. Grant, 10 Paige, 348, 350. Whatever lies in that domain is the subject of investigation, not only between a defendant and the plaintiffs, but between codefendants, so that the final judgment may terminate the questions that might be raised as to the subject-matter in controversy. The only relief in advance of trial available to a defendant to eliminate irrelevant matter from the answer of a codefendant is by motion, no demurrer between defendants being allowed. Such a motion may, therefore, prop*262erly be made and passed upon according to its merits. Smith v. Hilton, 50 Hun, 236; Code Civ. Pro., § 545.

The subject of this controversy is a fund, arising from the sale of No. 1 State Street Block, Boston, Mass., belonging to Paran Stevens, in his lifetime, and sold by united action of all parties interested in his estate, with a reservation, by agreement, of the ¡sum of $26,666.67 of the purchase money to be deposited in the Union Trust Company of the city of Hew York, and there abide the result of the determination of the courts in the state of Hew York as to the ownership of the fund. T'o obtain such a determination this action was brought.

Paran Stevens died in the year 1872, leaving surviving the widow Marietta Stevens and three children, Ellen S. Melcher, Mary Stevens, now Paget, and Henry Leiden Stevens. The son Henry died in 1885, unmarried and without issue, and is represented by the defendant William Jay and Mary F. Paget as administrators. The widow died in 1895.

The'real estate in Boston, which produced the sum in controversy, formed a part of an aggregate sum of $1,000,000, given by Paran Stevens in his will to trustees, the income of which was to be paid to the widow during her life, and the principal at.'her death to his three children, and the issue of such as died prior to the decease of the widow. The testator gave two-thirds -of the residuary of his estate to trustees to pay the income to his daughters Ellen and Mary, and the other third to trustees for the education of his son Henry, for the payment of the income to him from the period of majority to the age of twenty-five years, and the accumulation of principal and interest to him on his attaining the latter age. In case Henry died, leaving no descendants, the principal of his trust fund was to be paid to the daughters Ellen and Mary.

The plaintiffs are the trustees of Mary Paget, and claim, in unison with the defendant Ellen S. Melcher, that the whole million-dollar fund belongs to these two children of Paran Stevens, deceased, and that the administrators and trustees of Henry Leiden Stevens, deceased, have no interest whatever in its distribution. On the contrary, those administrators and trustees of the son Henry maintain that his estate is entitled to one-third of the fund of $1,000,000, and, therefore, even were there no other complications, that estate would be entitled to one-third of the fund now held by the Union Trust Company for distribution.

*263So far no present question arises between the parties as to the form or propriety of the answer of the administrators and trustees. But the last branch of the answer sets up a counterclaim that the plaintiffs, representing Mary Paget, and the defendant Mary S. Melcher, have already received large sums of money on account, of their interest in the million-dollar fund, the amount of which they are ignorant, and pray for an accounting to the end that the estate of the son Henry may receive the whole of the fund which ia now the subject of this action, and any additional sum to which that estate is entitled to make up its third of the fund of $1,000,000.

It will thus be observed that the selection of distributees for the fund represented by one-third of the proceeds of sale 'of the Boston property is the main subject of litigation, as presented by.the scope ofrthe complaint, and a judgment in accordance with the demand of the complaint, and of the answer of the defendant Ellen S. Melcher, would exclude the representatives of the estate of the son Henry from any participation in that distribution. . That judgment, so entered, would determine that his estate was not entitled to any part, and would be based upon the theory that the representatives of that estate had no interest in the million-dollar fund, which question is the one directly in issue. It is plain that if the legal construction contended for by the plaintiffs is correct, under the will of Paran Stevens the representatives of the estate of the son Henry get no part of that million-dollar fund, and if such construction be adopted by the courts all of the defenses interposed on behalf of the estate of Henry need no farther to be considered.

But if, on the contrary, it should be determined that a vested interest in the fund of $1,000,000 went to Henry, under the will of his father, then the representatives of the estate of that son are entitled to the one-third part of the fund so created by the will, and may not only claim the one-third part of the ,sum realized by the sale of the Boston property, but enough more to make up one-third of the whole of the sum of $1,000,00:0, and may demand as against the plaintiffs an adjudication therefor as pertinent matter arising out of the subject of the controversy between them. A judgment, defeating the plaintiffs’ right to any part of the sum now on deposit in the Union Trust Company would give to¡ the defendants, representing the estate of the son Henry, the whole of the amount in controversy in this action, and necessarily adjudge that if his estate has not had its fair share of the million-dollar fund, it is legally entitled to that share. Whether that determination would *264involve an accounting as between the plaintiffs and the defendants is not one to here consider, for evidently the question involved is only the legal one, and this case does not hang upon a difference between the parties as to the actual amounts received. In other words, it may be said that the same legal adjudication, which would give the whole of the Union Trust Fund deposit to the representatives of the son Henry, would carry with it also the right to the additional sum required to make up one-third of $1,000,000.

The defendant Ellen S. Melcher stands upon the same right as the plaintiffs, and an adjudication of the character spoken of would affect her precisely as it does the plaintiffs. Hence, how can she claim that in this controversy the whole question is not to be decided, as to whether the plaintiffs and herself receive each one-half a million dollars from the whole fund, or each one-third of that fund and the defendant administrators and trustees of Henry, the other thirds.

It is plain by the joinder of the administrators and trustees of the estate of Henry Leiden Stevens,' deceased, as parties defendant, it is regarded by all parties as essential that such defendants should have their day in court as having a possible interest in the subject of the controversy. It seems impossible, without the determination by the court now upon this motion of the interests of the1 parties as upon a trial, to avoid the allowance of an answer by those administrators and trustees setting up in full their interest in the million dollar fund, of which the cash on deposit forms only a part. And however significant the decision of the Court of Appeals in the case of Paget v. Melcher, 156 N. Y. 399, may be as to the construction of a similar remainder in fee as to real estate conveyed in trust, such a question cannot be determined upon a motion to strike out an answer as irrelevant, and the right of trial is unaffected by any determination of the merits of a similar question, even by the highest courts. Mor is it necessary to determine whether the probate of the will in Massachusetts, the conversion of the realty in Boston into personalty, and any difference of decision under the laws of Massachusetts as to vested and contingent remainders, would require a different ruling than that adopted by our Court of Appeals.

In denying this motion I do not undertake to pass upon the question as to whether that part of the answer complained of is really a counterclaim, and whether a favorable judgment upon it would allow an accounting as between the. administrators and trustees of Henry and the plaintiffs and Ellen S. Melcher. I simply hold that *265the allegations of that part of the answer are not irrelevant, and so; deny the motion, with costs.

Motion denied, with costs.