On September 7, 1915, Oliver H. Payne executed four deeds of trust in each of which he appointed Lewis Cass Ledyard, Sr., and Lewis Cass Ledyard, Jr., as cotrustees. Each of these instruments also granted to the trustees a right to reasonable compensation, to be retained by them out of the income of the trusts, and further provided that *4their right to compensation in respect of the trust capital should not be affected by their resignation or death prior to the termination of the trusts.
Ledyard, Sr., died in 1932 and Ledyard, Jr., then appointed United States Trust Company of New York to be cotrustee with him. Ledyard, Jr., died in 1936, leaving a last will and testament which made the same Trust Company his sole executor.
In 1938 the Trust Company commenced this action as surviving trustee of the Payne trusts. The relief sought was a judicial settlement of the cotrustees’ accounts for the period between a prior accounting by them in 1933, and the date of the death of Ledyard, Jr., in 1936. The Trust Company named as defendants the beneficiaries of the Payne trusts and itself as executor of the estate of Ledyard, Jr., the deceased cotrustee. As such executor, the Trust Company made a claim on behalf of the estate of Ledyard, Jr., for additional commissions on the principal of the Payne trusts.
A referee who heard that claim rejected it on the merits. Final judgment in this accounting action was subsequently entered in 1939. The accounts of the cotrustees were thereby settled and the claim of-the estate of Ledyard, Jr., for additional commissions disallowed.
In 1948 Dorothy Ledyard Kniffin — a daughter of Ledyard, Jr. — as general guardian of infants who are beneficiaries of his estate but not of the Payne trusts, moved herein for an order vacating that final judgment and permitting her to reassert the claim of the estate of Ledyard, Jr., for the commissions that were disallowed in 1939. She attacked that judgment as not binding upon her wards because the Trust Company had not named them as parties defendant in the action. Special Term denied her application and the Appellate Division unanimously affirmed. Mrs. Kniffin then brought the case here by our leave.
The sole question thus presented is simply this: Were the beneficiaries of the estate of Ledyard, Jr., indispensable parties to this action for a settlement of the accounts of the trustees of the Payne trusts? The answer, we think, must be in the negative.
As appellant here Mrs. Kniffin says her wards were indispensable parties to this action, because the Trust Company *5appeared therein as the executor of the estate of Ledyard, Jr., and also as the sole accounting trustee of the Payne trusts. On that basis she would have liability imposed upon the beneficiaries of the Payne trusts for an asserted breach by the Trust Company of its fiduciary duty as executor of the estate of Ledyard, Jr. But the Trust Company was authorized to prosecute the claim for commissions on behalf of the beneficiaries of the estate of Ledyard, Jr., without joining them with it (Civ. Prac. Act, § 210). The beneficiaries of the Payne trusts were in no way responsible for the appearance of the Trust Company in a dual capacity. If, in fact, the Trust Company was guilty of a breach of fiduciary duty in handling the claim of the estate of Ledyard, Jr., for commissions, the remedy for that alleged dereliction was to compel the Trust Company to account therefor to the estate of Ledyard, Jr., as executor of that estate.
In short, on this record — so far as any liability of the beneficiaries of the Payne trusts is concerned — the judgment entered in this action in 1939 is in all respects conclusive.
Fisher v. Banta (66 N. Y. 468), cited by appellant, is a wholly different case both in fact and in principle. There the administrator of an estate attempted to account to himself as executor of a deceased beneficiary of the same estate. In the present case, the Trust Company did not account to itself as executor of the estate of Ledyard, Jr. On the contrary, the Trust Company here accounted as trustee of the Payne trusts to the beneficiaries thereof and not to itself in any capacity. (Cf. Surrogate’s Ct. Act, § 262, subd. 10.)
The order should be affirmed, with costs.