The respondent Edmund K. Stallo, who, according to the allegations of the complaint, claims an interest in moneys and ■ securities in the hands of the Metropolitan Trust Company, and was engaged in various joint enterprises or copartnership undertakings with the decedent concerning which there has been no accounting and with respect to which an accounting is demanded in this action, and the respondents Laura McDonald Stallo and Helena McDonald Stallo, who are the sole next of kin of Alexander McDonald, deceased, jointly demurred to the complaint on the grounds that there is a misjoinder of parties plaintiff and that causes of action have been improperly united, and on the further ground that the complaint fails to state facts sufficient to constitute a cause of action, either in favor of the trust company in its individual or in its representative capacity. There was no decision at Special Term on the demurrer on the grounds of insufficiency of the allegations of the complaint, and, therefore, the questions presented by the grounds of demurrer relating thereto are not presented for review.
I am unable to agree with the views expressed in the majority opinion with respect to either of the two grounds of demurrer therein considered. It appeal's by the allegations of the complaint that at the time the plaintiff was appointed administrator it owned and was in possession of a promissory note made by the respondent Edmund K. Stallo and by the decedent by said Stallo as his attorney in fact, dated December 8, 1909, payable on December 8, 1910, for $2,700,000, and held as security therefor $2,138,000 first mortgage bonds of the New Orleans, Mobile and Chicago Railroad Company; $240,900 preferred stock of said company; $1,950,000 common stock of said company; $155.26 bond scrip of said company; $116.10 preferred stock scrip of said company; $68 common stock scrip of said company, and $200,000 par value of the capital stock of the Standard Oil Company of New Jersey; and that after its appointment as administrator and while it was the holder and owner of said note, commencing with the summer of 1911, it sold from time to time all of said securities, and that it applied the proceeds of such sales to the payment *660of said note, and holds a surplus of $454,250.93 in its individual capacity. It is also alleged that on or about the 2d of February, 1912, defendant Brayton Ives delivered to the attorneys for the trust company $200,000 par value of bonds and 400 shares of preferred stock of the New Orleans, Mobile and Chicago Railroad Company and $20,000 in cash, which he claimed to own, for and on behalf of the trust company “as if deposited with it as additional security ” for said note, and the note at that time having been paid, “to be held by it for whomever might be entitled thereto.” It is further alleged, in substance, that in selling said securities the trust company acted within its rights as pledgee thereof and received the best price obtainable therefor, and judgment to that effect is demanded. The complaint does not disclose the existence of any controversy between the plaintiff as such pledgee and as administrator with respect to these matters, but proceeds upon the theory that the plaintiff in its capacity as administrator approves of all its acts as such pledgee. It is also alleged, however, that the defendants Harmon and Levy claim an interest in the right of defendant securities company in the securities so held by the plaintiff as pledgee; that the plaintiff as administrator, defendant Edmund E. Stallo and defendant securities company make claims to said surplus remaining on said sale of the securities so held by plaintiff as pledgee after the payment of said note; that plaintiff as administrator, said Stallo and defendant Ives each claim the securities and cash delivered by said Ives to the attorneys for the trust company as stated; that the plaintiff is unable to determine the merits of these conflicting claims without jeopardy to its own interests; and judgment is further demanded determining the respective claims and interests of said claimants, if any, in and to said funds and securities.
It may be conceded for the purposes of deciding this appeal that the trust company as pledgee sufficiently shows a cause of action for the relief demanded to the extent stated. It is manifest, however, that there is here stated no cause of action in favor of the trust company as administrator; but on the contrary a cause of action in favor of the trust company as pledgee against the administrator and others.
*661The complaint further shows certain joint ventures or copartnership undertakings on the part of the decedent and Edmund K. Stallo, with respect to which there has been no accounting, and judgment for such an accounting is further demanded; and it is further alleged that certain bonds, stocks and other securities, which were pledged as collateral security for notes which the administrator has paid, have come into the hands of the administrator, and are now held by it, and that it has received and now holds other stocks and securities; that Edmund K. Stallo asserts a claim individually to some of these securities, and asserts that others of them belong to the copartnership between him and the decedent; and that some of them were pledged as security for notes of which the defendant securities company and others were either makers or indorsers with the decedent and said Stallo, and the plaintiff does not know what interest, if any, Stallo, or the copartnership, have in these securities, or whether the defendant securities company has any interest therein, but it is not alleged that the securities company has asserted any claim thereto. Judgment is likewise demanded determining the rights and interests of said Stallo individually and of the copartnership and of the securities company with respect to these matters.
It is likewise manifest that the facts alleged with respect to these matters do not show a cause of action in favor of the trust company or one in which it is interested in its individual capacity but rather two, one for the copartnership accounting and another to determine conflicting claims to the stocks and securities, both in. its favor as administrator, in which it individually has no interest. It, therefore, seems to me quite clear that there is both a misjoinder of parties plaintiff (See Doyle v. Carney, 190 N. Y. 386; Case v. N. Y. Mut. Sav. & Loan Assn., 88 App. Div. 538; Hart v. Goadby, 138 id. 160; Groh v. Flammer, 89 id. 28; Lawrence v. McKelvey, 80 id. 514; Havana City R. Co. v. Ceballos, 49 id. 263. See, also, Arkenburgh v. Wiggins, 13 App. Div. 96; affd., 162 N. Y. 596; Hubbell v. Lerch, 58 id. 237), and a misjoinder of causes of action. (See Case v. N. Y. Mut. Sav. & Loan Assn., supra; Hart v. Goadby, supra; Johnson v. Phœnix Bridge Co., 197 N. Y. 316; O’Connor v. Virginia Passenger & Power Co., *662184 id. 46; Cass v. Realty Securities Co., 148 App. Div. 96; affd., 206 N. Y. 649.) If McDonald were living, plainly he could not have joined these causes of action, and, therefore, the cases of Shepard v. Manhattan R. Co. (117 N. Y. 442) and Mullin v. Mullin (119 App. Div. 521) and kindred authorities do not sustain the complaint.
As I view the case, there is no conceivable theory upon which these causes of action might properly be united in a single complaint. If it be assumed that the action is brought by the plaintiff as administrator primarily to determine the rights and interests of the estate of the decedent in the funds and securities in the hands of the plaintiff as pledgee and as administrator, and for an accounting with respect to the joint ventures, or copartnership enterprises, the same difficulty is encountered, for neither the trust company nor the defendants who assert an interest in the funds and securities in its hands individually and as administrator, have any interest in the settlement of the transactions between the decedent and Edmund K. Stallo, as joint venturers or copartners. Nor can the action be maintained on the theory that it is brought by the plaintiff as administrator for a final accounting and distribution of the assets in its hands as such. The complaint contains no appropriate allegations to warrant the Supreme Court in taking jurisdiction and in ousting the Surrogate’s Court of jurisdiction, for it is not alleged that all the debts and obligations of the estate have been paid or that there is no one interested in the estate other than the defendants (See Hart v. Goadby, supra; Bushe v. Wright, 118 App. Div. 368; affd., 195 N. Y. 510; S. C., 118 App. Div. 320; affd., 195 N. Y. 509), and while the Supreme Court has jurisdiction concurrently with that of the Surrogate’s Court to require an accounting by executors or administrators, its jurisdiction is only exercised to the extent necessary to supplement the jurisdiction of the Surrogate’s Court with respect to matters concerning which the latter court is without jurisdiction. (Chipman v. Montgomery, 63 N. Y. 221; Borrowe v. Corbin, 31 App. Div. 172; affd., 165 N. Y. 634.) But it is not even claimed that the action is one for a final accounting of the administrator. There is no precedent, and I see no propriety in establishing one, *663for a partial or intermediate accounting in the Supreme Court between the administrator and the next of Join, and, therefore, the action cannot be maintained for that purpose, and the joinder of these separate causes of action sustained on the theory that they are incidental to such an accounting. Although the Surrogate’s Court has full jurisdiction to take or to require an accounting by the administrator, it has not jurisdiction of the causes of action set forth in the complaint with respect to the determination of conflicting claims to said funds and securities and to require the surviving partner or joint adventurer to account to the estate of the decedent. It is, therefore, both proper and necessary that those causes of action be litigated in a court of competent jurisdiction. They cannot, however, be deemed merely incidental to this action on the theory that it is one for either a final or a partial accounting by the administrator. The administrator is not ready to account with respect to the decedent’s interest in the copartnership or joint adventures or with respect to the funds and securities held by plaintiff as pledgee, or by it as administrator, and it is the duty of the administrator to collect the assets of the estate by enforcing its rights or having them determined without joining the next of kin and creditors and calling upon or leaving it to them in their respective individual rights to endeavor indirectly to enforce or to protect the rights of the estate. If this action should be sustained on the theory that it is one for an accounting by the administrator, and that all other relief demanded is incidental thereto, and that it is properly brought in the Supreme Court owing to want of jurisdiction in the Surrogate’s Court to decide the incidental matters, there would be no limit to the number of independent and wholly disconnected equitable causes of action that might be thus joined as incidental to an accounting by an executor or administrator in the Supreme Court where it becomes necessary to resort thereto before there can be a final accounting; and the action might be brought at once upon the issuance of letters of administration and without first enforcing or endeavvoring to enforce the equitable causes of action in favor of the estate, and by making the creditors and, as has been done here, the next of kin parties, shift or endeavor to shift the burden, *664which devolves upon the executors or administrators, of proving the causes of action on to the creditors and next of kin at the risk of being concluded by an adverse decision in an action to which they are parties. If executors and administrators could thus avoid all the responsibility and risk of liability on the settlement of their accounts, such actions would become common and a very large part of the work_ designed to be performed by the Surrogates’ Courts would devolve on the Supreme Court and the expenses and delays in the administration of estates would be largely increased. There is no precedent for such an action and none should be established.
McLaughlin,!., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendants respondents to withdraw demurrer and to answer on payment of costs.