Minion v. Warner

• Decision Date: 05 July 1924
• Citation: 238 N.Y. 413,144 N.E. 665
• Parties: MINION et al. v. WARNER.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 413

144 N.E. 665

MINION et al.

v.WARNER.

Court of Appeals of New York.

July 5, 1924.

Suit by Edna W. Minion and another against Clara F. Warner. From a judgment of the Appellate Division (208 App. Div. 788,203 N. Y. Supp. 941), affirming a final judgment of the Special Term, entered on the report of a referee in favor of plaintiffs, defendant appeals.

Modified, and, as so modified, affirmed.

Appeal from Supreme Court, Appellate Division, Second Department.

W. E. Warner, of New York City, and William F. Connell, of Brooklyn, for appellant.

W. J. Carlin, of New York City, for respondents.

ANDREWS, J.

The plaintiffs and the defendant became tenants in common of certain real property under a devise contained in a will. The defendant was the sole executrix and was given a power of sale. Perhaps because of this fact she seems to have managed the real estate with the implied assent of her cotenants from the death of the testator in 1910 until it was sold in 1916. This action, begun in 1918, was brought in equity for an accounting. It is alleged that the defendant had collected all rents after the title of the property had vested in the parties, that she refused to account for the same, and that the plaintiffs do not know the amount so collected, or what sum is due to them. The defendant demurred to this complaint, and while her demurrer was sustained at Special Term the order of that court was reversed by the Appellate Division. Minion v. Warner, 185 App. Div. 246,173 N. Y. Supp. 69. Thereafter the case was tried and findings were made. They show the cotenancy arising under a devise, the collection of all rents by the defendant, her failure to account for any part of them, certain disbursements made by her for the maintenance of the property which are properly a matter of accounting between the parties, the ignorance of the plaintiffs as to the amount of the said rents and profits and the amount due them, and their possession of no adequate remedy at law. Upon these findings the defendant was directed to account before a referee. The interlocutory judgment then entered was unanimously affirmed by the Appellate Division. Thereupon an accounting before the referee was had, which resulted in a judgment in favor of the plaintiffs, which was also unanimously affirmed. We have before us these various orders and judgments.

[1][2] The most important question for our consideration is whether or not tenants in common must sue at law under the circumstances here alleged, or whether they may bring an action in equity for an accounting. Upon this proposition the Appellate Divisions of the First and Second Departments are in apparent conflict. In Niehaus v. Niehaus, 141 App. Div. 251,125 N. Y. Supp. 1071, it was held that an action in equity for an accountingis not maintainable. On the contrary the Appellate Division of the Second Department has here held that such an action is proper. The same ruling was made by Mr. Justice, now Judge, Crane in Maekotter v. Maekotter, 74 Misc. Rep. 214,131 N. Y. Supp. 815. Even if we concede that, to sustain an equitable action for an accounting, it must generally appear that there is some trust or quasi trust or fiduciary relation existing between the parties, as between tenants in common who hold their estate through descent or under a will, there is such a quasi trust relationship. Thayer v. Leggett, 229 N. Y. 152, 128 N. E. 133;Knolls v. Barnhart, 71 N. Y. 474;Carpenter v. Carpenter, 131 N. Y. 101, 29 N. E. 1013,27 Am. St. Rep. 569.

Apart from this, however, the jurisdiction of courts of equity in such actions as the present is an ancient one. Originally only to them could an appeal be made, where one cotenant had collected more than his share of the rents and profits. When the Statute of Anne extended an action of account to such a situation, it was never thought that this interfered with the jurisdiction of equity. There were thereafter two concurrent remedies, where but one before existed. Leach v. Beattie, 33 Vt. 195; Denys v. Shuckburgh, 5 Jur. 21; Hamilton v. Conine, 28 Md. 635, 92 Am. Dec. 724; Pom. Eq. Juris. § 1421, note. There is no reason why we should hold that section 1666 of the Code does what the Statute of Anne did not do. We therefore agree with the court below as to its disposition of this question.

[3][4] Another question arises as to the statute of limitations. As has been said, this action was begun in 1918, and the statute was pleaded as a partial defense to collections made prior to March, 1912. The findings have taken the gross collections made each year, have subtracted from them proper expenses, and have found thereby an annual balance. This balance, with simple interest thereon, has been charged against the defendant. If this is the true situation between the parties, then the statute of limitations would apply to the balances due for 1910 and 1911. For them an action at law might at once be begun. Where there is concurrent jurisdiction in law and equity, equity is bound by the statute of limitations. The mode of relief sought is immaterial. Roberts v. Ely, 113 N. Y. 128, 20 N. E. 606;Mills v. Mills, 115 N. Y. 80, 21 N. E. 714;Model Building & Loan Ass'n of Mott Haven v. Reeves, 236 N. Y. 331, 140 N. E. 715.

[5][6] But if there existed between the parties mutual, open, and current accounts, then the statute did not begin to run until the last item in 1916 when the...