#### Charles J. Breck, as Trustee in Bankruptcy of Louis C. Whiton, Appellant, Impleaded with Harriet B. Whiton, Respondent, and John B. Sabine and Others, Plaintiffs, *v.*United States Title Guaranty and Indemnity Company and George J. Grossman, Defendants, Impleaded with Adolph C. Hottenroth, Appellant.

First Department,

October 23, 1908.

Trial—joinder of legal and equitable causes — practice where legal issues only have been determined.— when Appellate Division will not determine equitable rights — rights of claimant made defendant.

Where several plaintiffs as assignees of portions of a single claim have joined in a complaint seeking a recovery against the debtor and praying also that their respective rights in such recovery be determined, and the case has been tried at law before a jury whose verdict merely establishes the liability of the defendant on the main claim without findings as to the respective interests of the plaintiffs, the appellate court, considering that done which ought to have been done, will direct the entry of an order that the common-law issues have been properly disposed of, but directing the Special Term to settle the equitable issues as between the claimants.

Although the evidence on appeal may he sufficient for a determination of the equitable rights of the claimants, such determination will not be made by the Appellate Division if there be no findings by the court below.

Although one of the assignees who refused to join as plaintiff was made defendant and did not answer, his rights in the fund should be determined where he appeared, demanded service of all papers, and the nature of his claim was set forth in the complaint.

Appeal by the plaintiff, Charles J. Breck, as trustee, etc., and by the defendant, Adolph C. Hottenroth, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of July, 1908..

*Clarence R. Freeman,*for the appellant Charles J. Breck, as trustee, etc.

*Herbert F. Andrews*of counsel *[Louis C.*Whiton, attorney], for the respondent Harriet B. Whiton.

Clarke, J.:

This is an appeal from an order of the Special Term, Part I, made on- a motion directing that judgment herein be entered *312against defendant, the United States Title Guaranty and Indemnity Company, in favor of Harriet B. Whiton, one of the plaintiffs. The summons and complaint were served in February, 1904. Louis C. Whiton was a party plaintiff, together with Harriet B. Whiton, John B. Sabine, Edwin B. Holdridge and Elmer E. Beeck. The complaint set up a claim for work, labor and services rendered by Whiton to the Long Island Title - Guaranty Company, which were claimed to be reasonably worth the sum of $10,000, and that the defendant company had assumed the liabilities of the Long Island Title Guaranty Company. The complaint further alleged an assignment for valuable consideration on September 29, 1902, of $1,920 of the claim to Harriet B. Whiton. On the same day an assignment of $.650 to A. A. Bell, thereafter by her assigned to Harriet B. Whiton; an assignment on the same date for $500 to G. H. Johnson, thereafter assigned to Harriet B. Whiton; an assignment on the same date of $1,000 to J. W. Little,, thereafter assigned to Harriet B. Whiton, making the total interest in the claim vested in the plaintiff Harriet B. Whiton by virtue of assignments dated September 29, 1902, $4,070. The complaint also alleged an assignment to plaintiff John B. Sabine, proved upon the trial to have been October 15,1902, for $1,000 ; also an assignment on April 4, 1903, to Edwin B. Holdridge of $500; and on June 1, 1903, an assignment to Elmer E. Beeck of $450 ; also an assignment to defendant Adolph C. Hottenroth, who was made a defendant as he refused to be joined as a party plaintiff, for $600, alleged to have been made October 21, 1902, but proved upon the trial to have been dated September 29, 1902; an assignment September 29, 1902, to defendant George J. Grossman, who refused to join as a party plaintiff, of $250. In the original complaint the plaintiffs demanded judgment against the company, according to their respective interests therein, for $10,000,' with interest thereon from December 12, 1902.

On July 20, 1904, the plaintiff Louis C. Whiton was adjudged a bankrupt, and Charles J. Breck, as trustee, was duly substituted as one of the plaintiffs on April 15,1907. March 6,1908, Breck, as trustee, served a supplemental complaint, being identical with the original' complaint, except that it set up the bankruptcy of Whiton. and the appointment of Breck as his trustee, and demanded judgment *313against the defendant company for the sum of $10,000. May 20 to 28,1908, the cause was tried by the court and a jury, and a verdict rendered *for the plaintiff*for $2,650 and interest, amounting in all to $3,518.31. Proposed judgments were submitted by plaintiff Harriet B. Whiton claiming the entire amount of the verdict, Charles J. Breck, as trustee, making a similar claim, and defendant Hottenroth asking an apportionment of the judgment between himself and the plaintiff Harriet B. Whiton.

Judgment was ordered entered for Harriet B. Whiton. The plaintiff trustee in bankruptcy and the defendant Hottenroth appeal.

As will be seen, the trustee in bankruptcy has no beneficial interest in the recovery as the assignments prior to the act of bankruptcy amounted to $6,020 with interest. The court said: “ The action was not in equity to adjust the rights and interests of all the parties before the court. It was on contract with a demand for judgment in a specific sum in favor of plaintiffs. Therefore, the judgment under the verdict for plaintiff ’ cannot be apportioned in favor of one or more defendants. The only question is as between the plaintiffs. Of these the trustee in bankruptcy has neither personal interest nor claim. His status in the action arose from the bankruptcy of the assignor of the claim on which the action was founded. The creditors of the bankrupt in this case could have no claim in the thing assigned before the bankruptcy, and the only function left to the trustee to perform if the judgment ran to him would be to pay it over to Harriet B. Whiton, the other plaintiff, less his commissions incident to his office.”

The difficulty about this case, as I view it, is that the only thing determined by the verdict was the amount due on the principal claim from the defendant company upon the claim of Whiton for the value of his services, and although the court upon that trial was asked to direct the jury that if they found a verdict against the defendant to find for the plaintiffs, the respective amounts due each plaintiff, this motion was denied. Therefore, the sole issue presented to and determined by the jury was the amount due from the defendant company.

The pleadings in this ease presented both equitable and common-law issues. The common-law issue was, had Whiton rendered work, labor and services to the defendant company at their instance and *314request, and if so, what was the value thereof ? ' This question was properly triable before a jury. The equitable questions were, it having been determined that an amount was due from the defendant company, how was that fund to be distributed among the various people having claims thereto by assignment or otherwise, as set forth in the pleadings. In this respect the case bears a resemblance to *Derham*v. *Lee*(87 N. Y. 599), where the court said: “ It should be observed the action is not, as the appellant assumes, a mere common-law action, seeking judgment for a sum of money and no other relief. The plaintiff also sought to extinguish an adverse or hostile claim to that mtinéy; to have determined, not only the ■ amount due from Lee, but the party to whom it should be paid. * * * Before trial Lee had been notified by Sunderland of the assignment. The plaintiff knew of it. Each, therefore, would have been subject to fresh suit by him; the plaintiff for the money recovered ; the defendant for paying it over after notice. It was in equity a general rule, that all persons interested in the subject of the suit should be made parties either as plaintiffs or defendants, in order to prevent a multiplicity of suits, and secure a final determination of their rights. * * * The provisions of our Code are not in derogation of this principle, but apply it to all actions where the controversy can be ended by One hearing and adjudication.”

In the case cited, however, the action having been tried before a referee and appropriate findings having been made by him, there was no difficulty in entering a judgment which could be supported by such findings. It seems to be clear that a judgment can only be supported by a verdict or findings. In the case at bar there is a verdict but it only settled one issue and that was, how much was due by the defendant company upon the main claim, and in form that was rendered by the jury for the plaintiff in the singular, while the record shows five plaintiffs of record, basing their claims upon various grounds. It seems that we should consider that to have been done which ought to have been done, namely, the entry of an order directing the separate trial of the common-law issues, and that in obedience thereto the common-law issues have been tried and disposed of. That being so, the case should go back to the Special Term for a settlement of the equitable issues, namely, the priority of the claims and the amount due upon each one. *315While the evidence may be sufficient, there is no finding in that regard. It should be noted that Mr. Hottenroth’s assignment bears the same date as that of Mrs. Whiton, and the question still remains whether he is not entitled to a proportionate share of the amount found due from the defendant company. To be sure he was a defendant and the verdict was for the plaintiff, but the issues so far as he was concerned were not passed upon by the jury. Hor is it any objection, as it seems to us, that he interposed no answer, for his claim was set up in the complaint and proved upon the trial, and he was made a party defendant simply because he declined to be a plaintiff. He served a notice of appearance and a demand that all papers should be served upon him and apparently was satisfied with the statement of his claim made in the complaint and regarded ' an answer under those circumstances unnecessary.

We think, therefore, that the order appealed from should be reversed and the case remitted to the Special Term for the trial of the equity issues undisposed of, and under the peculiar circumstances, without costs, to any party as against the other.

Patterson, P. J., Ingraham, Laughlin and Scott, JJ., concurred.

Order reversed, without costs, and case remitted to Special Term, as stated in opinion. Settle order on notice.