The complaint in this action alleges the death of one N. P. Rogers at the city of New York, leaving a last will and testament, wherein he appointed the plaintiffs and the defendant Nathaniel P. Rogers as his executors; that said will was duly admitted to probate, and letters testamentary issued thereon to the plaintiffs and the defendant N. P. Rogers; that the defendants Frank Y. Maguire and N. P. Rogers were at the times mentioned *278in the complaint copartners doing business in the city of New York under the firm name of Maguire & Rogers; that the deceased, N. P. Rogers, loaned to said Maguire & Rogers, as such copartners, divers sums of money, amounting in the aggregate to the sum of $50,000, which said several sums they promised and agreed to pay to the testator; that at the time of the death of said testator the defendants Maguire & Rogers wholly failed to repay such sums, or any portion of the same, although such sums were at such time, and ever since have been, wholly due and owing by said defendants to the testator; and judgment was prayed adjudging that the defendants were indebted to the plaintiffs, and the amount of such indebtedness, and for such further and other relief as might be proper. The defendant Rogers demurred to the complaint upon the ground that it appeared upon the face of the complaint that there was a defect of parties plaintiff in the omission of N. P. Rogers as an executor of the last will and testament of N. P. Rogers, deceased.
We think the decision of this appeal might very well be left upon the opinion of the learned court below. But such opinion is criticised, in that it is claimed that error was committed by the court in considering the prayer for relief, together with the other allegations of the complaint, in determining whether the action was one in equity or an action at law. And the cases of Hale v. Bank, 49 N. Y. 636, and Bell v. Merrifield, 109 N. Y. 207, 16 N. E. 55, are cited in support of that proposition. But all that was decided in those cases was that the form of the relief asked in the complaint is not controlling in determining the nature of the action,—a very different thing from holding that in determining what might be the form of action which was intended to be brought it was improper to consider the prayer for relief. In the case at bar the learned court held that an action at law cannot be maintained by one executor against another, but that an action in equity may be maintained by one executor against another to establish a debt owing by the defendant executor to the testator, and to determine the disposition of the fund thus created. The defendant executor, together with his co-partner, is alleged to have been indebted to the testator. This debt the defendant executor was bound to pay to the estate of the testator, and the only way in which his liability could be determined is by an action such as this, in which the debt may be established, and its proper disposition adjudicated upon. It is undoubtedly true that similar allegations in an action between other persons would be held to be an action at law. But, where the necessities of the case require a party to come into a court of equity, those allegations will be treated as belonging and appropriate to that class of actions, as was held in the court below. We think that the principles declared in the case of McGregor v. McGregor, 35 N. Y. 218, authorize the bringing of such action. The judgment should therefore be affirmed, with costs. All concur.