#### Baldwin Schlesinger, as Executor, etc., of Abraham Schlesinger, Deceased, Respondent, *v.*Phil Bear and Leo Schlesinger, Respondents. Amelia Schlesinger, Appellant.

First Department,

November 6, 1908.

Party—action by executor of deceased partner — when beneficiary of estate granted leave to intervene.

Where it appears that an executor whose appointment dates back, ten years cannot account until the determination of an action brought by him to determine the testator’s interest in a former partnership, and that the action has been pending for four years, a beneficiary under the will who has petitioned for an accounting should be granted leave to intervene as defendant in the action in order that she may protect her Ultimate interests.

Appeal by Amelia Schlesinger 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 16th day Of June, 1908, denying the appellant’s application for leave'to intervene as a party defendant.

*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.

Per Curiam:

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 *495February, 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 Mew York Supreme Court for the county of Mew 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.

Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.