The action was prosecuted to obtain possession of household furniture leased by the testatrix Catherine Lenihan to the defendant Patrick E. McGowan, with the premises known as 109 East Twelfth street in the city of New York. He is the husband of the plaintiff Mary Frances McGowan, who with the other plaintiff are daughters of the testatrix. He went into possession of the leasehold property under the lease, and the occupancy thereof. He allowed the action to go by default against himself and has not paid the rent reserved by the lease for the use of the furniture. And after the decease of the testatrix the appellant-, without reviving the action, obtained a stipulation from the executor named in her will for the discontinuance of the action. In the proceeding in replevin, possession of the furniture was obtained by the plaintiffs and the discontinuance of the action seems to have been intended to leave the plaintiff Mary Frances McGowan and her husband in such possession, as the other plaintiff has withdrawn from the action. This furniture is claimed to be a portion of the estate of the deceased testatrix. And as her right to it was denied and contested in this action, it was entirely proper to revive it hy making her executor a party to it as defendant.
But as that relief was not expressly included in the order to show cause, the objection has been made, that the court on this application could not regularly make this part of the order. The affidavits used in support of the motion do, however, sustain its propriety. He is the executor of the estate, and it is his duty to protect it from reduction and depletion by the illegal appropriation of this furniture by the appellant, and that can most effectively be done by resisting her right to maintain this action. And as the order to show cause also includes the clause for “ other and further relief in the premises, as to this court may seem just and proper,!’ the revival of the action in favor of the executor,
It also appeared that the stipulation given by him for the discontinuance of the action was not only improvident, but conspicuously improper. For, without any reason justifying it, that permitted the appellant to continue to hold possession of the furniture, and protected her husband, who was a defendant in the action, against his obligation created by the lease to pay an annual rent for the use of this furniture. If it had provided for such a discontinuance as would have resulted in the return of the property, the case then might not require this interposition of the court. But that evidently was neither the nature nor the object of the stipulation. It was designed by it to secure to the appellant the advantage which could alone result from maintaining her title to the furniture, and that as to this estate was so collusive as to necessarily avoid its success.
This part of the order was also supported by the facts. The regularity of the remaining part of the order malting Nora Gardner a defendant in the action is not so well supported. She is shown to be a legatee entitled to one-third of the estate of the testatrix, after the payment of her debts, and a legacy of $500. The value of the personal estate has not been shown, neither has it in any form been affirmed
This is so broad as to include this case, and as this applicant seems to have so much interest in the subject of the action as to render it important for her to protect it, and the executor has already demonstrated his indisposition to faithfully do that himself, this part of the order was rightly made.
The case of Delafield v. Barlow, 107 N. Y. 535, was an action for partition, and the person proposed to be made a party had no interest in the land to be partitioned. And in Bump v. Gilchrist, 52 Hun, 6, the legatee had no interest Avhatever in the note Avhieh was in controversy. These cases, therefore, are not controlling over the present appeal. And no case seems to have arisen indicating it to be a duty to exclude this legatee from becoming a party to this action. Good faith in the action as well as this mandatory language of the Code support her application. And the order should be affirmed, with ten dollars costs, and the disbursements on the appeal.
Van Brunt, P. J., and Brady, J., concur.