Rumsey, J.:
This action was brought in the month of November, 1895. The parties to the original action were the executors of John Elliott, the members of the firm of Rigg'S & Co., the administrator of the estate of Charles A. de Chambrun, and the administratrix of the estate of Thomas M. "Wheeler. The complaint alleged that there had been assigned to the plaintiff by Thomas M. Wheeler a mortgage to-secure the sum of $10,875, which the plaintiff held as trustee for the benefit of John Elliott in a certain sum, and for the benefit of Riggs & Co. in another sum, and with the understanding that upon the collection of the mortgage or upon the payment of those sums he would reassign the mortgage to Wheeler. The plaintiff alleged in his complaint that de Chambrun had agreed to pay the plaintiff $2,500' for certain services, and de Chambrun and Wheeler had agreed to-pay him $1,956 for certain other services, and that he was entitled to-a lien upon the money collected upon said mortgage, after" the payments of "the amounts due to Elliott and Riggs & Co., to secure the payment of the two sums owing to him from de Chambrun. He alleged that the amount of the mortgage had been paid to him, and he brought the action to obtain a judgment, fixing the amounts owing to Riggs & Co. and to Elliot and to Wheeler as the owner of the mortgage, and asking that he should be adjudged to have a lien upon the remainder of the proceeds of the mortgage to secure the payment to him of the saicí sums of $2,500 and $1,956; but it was conceded in the complaint that such lien was subject to the prior lien of Riggs & Co. and Elliott, and the relief asked was that it be so declared. It is important that this fact should be borne in mind because the plaintiff did not bring the original action to assert any claim upon the proceeds of the mortgage which belonged to Elliott or to Riggs & Co., but he expressly stated that whatever claim he might have had to. a remainder of the proceeds of the mortgage, was subject to the prior rights of Elliott and of Riggs & Co. After the action had been brought and was at issue, and on the 14th of December, 1898, it was settled by contract by which the plaintiff agreed to pay the sum of $8,077.96 on the 15th óf January, 1897, in full settlement of the amounts claimed by Elliott and Riggs & Co.; to pay to de Chambrun the sum of $1,164.40, and to the administratrix of Wheeler the sum of $1,170.20, and it was agreed that [571] upon tile making of those payments an order of discontinuance should be entered. After that agreement had been made and a portion of the money had been paid under it, the plaintiff applied for leave to serve a supplemental complaint, which was granted, and thereupon he served upon the defendants a complaint, setting up this agreement for a settlement; that he had paid to Elliott and Riggs & Co', the sum of $5,000, and to de Chambrun the full amount agreed to be paid to him. The plaintiff then set up that the executors of Elliott were indebted to him in the sum of $5,700 for services which he rendered to John Elliott, their testator, and to the defendants as executors in a certain action. He also set up that the firm of Riggs & Co. was indebted to him in a certain other sum for services rendered to them as attorney at law, which were more particularly set out. He also set up that the defendant "Walker, as administratrix of Wheeler, was indebted to him in the sum of $1,141 for promissory notes given by Wheeler to him and which he then held. The judgment which he asked in his supplemental complaint was that the action had been compromised and that the amount due to him from the executors of Elliott and from Riggs & Co. and from Walker, as administratrix of Wheeler, be fixed and ascertained, an.d whatever was due to them by reason of the agreement for a settlement be applied upon those amounts, and that he have judgment for the remainder. To the complaint as thus changed the executors of Elliott and Riggs & Co. demurred separately, and upon the trial of the issue of law thus raised the demurrer was sustained and judgment ordered for those defendants. From that judgment this appeal is taken. The supplemental complaint is not a substitute for the original complaint, but both stand as one pleading. (Lovatt v. Watson, 35 Hun, 553, 555.) The two papers are read together and the demurrer is taken to both. It is “ to the amended and supplemental complaint.”
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Rumsey, J.:
This action was brought in the month of November, 1895. The parties to the original action were the executors of John Elliott, the members of the firm of Rigg'S & Co., the administrator of the estate of Charles A. de Chambrun, and the administratrix of the estate of Thomas M. "Wheeler. The complaint alleged that there had been assigned to the plaintiff by Thomas M. Wheeler a mortgage to-secure the sum of $10,875, which the plaintiff held as trustee for the benefit of John Elliott in a certain sum, and for the benefit of Riggs & Co. in another sum, and with the understanding that upon the collection of the mortgage or upon the payment of those sums he would reassign the mortgage to Wheeler. The plaintiff alleged in his complaint that de Chambrun had agreed to pay the plaintiff $2,500' for certain services, and de Chambrun and Wheeler had agreed to-pay him $1,956 for certain other services, and that he was entitled to-a lien upon the money collected upon said mortgage, after" the payments of "the amounts due to Elliott and Riggs & Co., to secure the payment of the two sums owing to him from de Chambrun. He alleged that the amount of the mortgage had been paid to him, and he brought the action to obtain a judgment, fixing the amounts owing to Riggs & Co. and to Elliot and to Wheeler as the owner of the mortgage, and asking that he should be adjudged to have a lien upon the remainder of the proceeds of the mortgage to secure the payment to him of the saicí sums of $2,500 and $1,956; but it was conceded in the complaint that such lien was subject to the prior lien of Riggs & Co. and Elliott, and the relief asked was that it be so declared. It is important that this fact should be borne in mind because the plaintiff did not bring the original action to assert any claim upon the proceeds of the mortgage which belonged to Elliott or to Riggs & Co., but he expressly stated that whatever claim he might have had to. a remainder of the proceeds of the mortgage, was subject to the prior rights of Elliott and of Riggs & Co. After the action had been brought and was at issue, and on the 14th of December, 1898, it was settled by contract by which the plaintiff agreed to pay the sum of $8,077.96 on the 15th óf January, 1897, in full settlement of the amounts claimed by Elliott and Riggs & Co.; to pay to de Chambrun the sum of $1,164.40, and to the administratrix of Wheeler the sum of $1,170.20, and it was agreed that [571] upon tile making of those payments an order of discontinuance should be entered. After that agreement had been made and a portion of the money had been paid under it, the plaintiff applied for leave to serve a supplemental complaint, which was granted, and thereupon he served upon the defendants a complaint, setting up this agreement for a settlement; that he had paid to Elliott and Riggs & Co', the sum of $5,000, and to de Chambrun the full amount agreed to be paid to him. The plaintiff then set up that the executors of Elliott were indebted to him in the sum of $5,700 for services which he rendered to John Elliott, their testator, and to the defendants as executors in a certain action. He also set up that the firm of Riggs & Co. was indebted to him in a certain other sum for services rendered to them as attorney at law, which were more particularly set out. He also set up that the defendant "Walker, as administratrix of Wheeler, was indebted to him in the sum of $1,141 for promissory notes given by Wheeler to him and which he then held. The judgment which he asked in his supplemental complaint was that the action had been compromised and that the amount due to him from the executors of Elliott and from Riggs & Co. and from Walker, as administratrix of Wheeler, be fixed and ascertained, an.d whatever was due to them by reason of the agreement for a settlement be applied upon those amounts, and that he have judgment for the remainder. To the complaint as thus changed the executors of Elliott and Riggs & Co. demurred separately, and upon the trial of the issue of law thus raised the demurrer was sustained and judgment ordered for those defendants. From that judgment this appeal is taken. The supplemental complaint is not a substitute for the original complaint, but both stand as one pleading. (Lovatt v. Watson, 35 Hun, 553, 555.) The two papers are read together and the demurrer is taken to both. It is “ to the amended and supplemental complaint.”
It will be noticed that in the original complaint the plaintiff claimed no lien upon that portion of the mortgage which was to be paid to Elliott or to Riggs & Co., but expressly asked that any claim which he had should be subject to their prior rights. Therefore, as against them, he had no right to insist that whatever sum was coming to them out of the mortgage should be made subject to any debt which they owed him; nor does he in the supplemental complaint' [572] allege any lien upon the portion of the fund belonging to them ; nor does he set up any facts out of which a lien can arise. He says he performed certain services for Elliott as attorney, by reason of which his executors became indebted to him in the sum of $5,700, but these services were not rendered in the matter of his trusteeship of this mortgage, and, so far as appears, they had no relation whatever to the mortgage. So, with regard to Riggs & Co., he alleges that they owed him .$2,500 for professional services, but it is evident from the dates of those services that they were not per-' formed by him in any matter connected with the trusteeship, but whatever debt there was from Riggs & Co. accrued as early as 1886, which was a long time before the mortgage was transferred to the plaintiff. The claim set up in this complaint against Elliott constitutes simply a cause of action for services rendered to him, for which he alone is liable, and it has no connection whatever with the debt due from the plaintiff and Riggs & Co., and the administratrix of Wheeler have nothing whatever to do with it. So the claim against Riggs & Co. is simply a legal cause of action against them for services not rendered in connection with this trusteeship, and out of which no lien whatever upon this debt arises. It is purely an effort to unite in one cause of action a legal claim against Riggs & Co. with another against Elliott and with a third against the administratrix of Wheeler. Section 484 of the Code of Civil Procedure authorizes the uniting in the same complaint of several causes of action upon contract, but it expressly requires that those causes of action should affect all the parties to the action. It is not meant by this that the same judgment should be asked for against each defendant; but to permit the joining of several defendants, where a money judgment only is asked for, it is necessary that each defendant should have an interest either in the subject of the action, or in a fund out of which the money judgment must, as a result of the action, be derived. But whenever it appears that one defendant has no interest whatever in the result of the action, so far as another defendant is concerned, and that there is no common fund in regard to which the rights of the defendants are to be adjudged, he cannot be joined with the other defendants. It clearly appears in this case that Riggs & Co. have no interest whatever in any judgment that is asked against the executors of Elliott, nor have the executors of [573] Elliott any interest whatever in the judgment asked against Riggs & Co. It is quite true that the plaintiff owes to Elliott and to Riggs & Co. a certain sum of money, and if he had been sued by Elliott for that sum of money he could undoubtedly set up as a counterclaim these legal services. So, if he had been sued by Riggs & Co. for the sum of money he could set up as a counterclaim the legal services rendered to them, but that would not be because he had a lien upon any fund in his hands which was due to these people, but would be simply an assertion of the right of counterclaim which every person has when a claim is made against him.
The complaint is sought to be sustained because the plaintiff asks for an adjudication as to the rights of several persons to a fund which is in his hands. But there is no fund in his hands, as appears by the supplemental complaint. The money which constituted the fund has been paid to him and he has by express contract agreed how it shall be divided among those persons who are entitled to it, and as the result of that agreement there is no longer a fund, but the plaintiff is bound by contract to pay a fixed amount to each of several persons. We have already held in this case that the remedy of these several defendants was only by an action at law, upon the stipulation which appears in this supplemental complaint, to recover the amount which the plaintiff, by that stipulation, agreed to pay to them. (Harris v. Elliott, 19 App. Div. 60.) The agreement of the plaintiff to pay is made separately, with separate defendants, and no joint action will lie by all (Hees v. Nellis, 1 T. & C. 118), but each must sue separately. In that action Harris could set up, as against the claim of each plaintiff, the counterclaim which he has alleged in tliis complaint. This counterclaim would constitute a separate defense to each defendant, in which no other defendant would be at all interested. The test to determine whether two parties can be joined as defendants is, whether they have one connected interest centering in the point in issue, or one common point of litigation. (Mahler v. Schmidt, 43 Hun, 512; Corcoran v. Mannering, 10 App. Div. 516.) It is quite evident here that there is no common point of litigation and no connected interest. The plaintiff’s claim against each of these defendants is entirely separate from the claim against any other, and he makes no assertion or allegation as to Riggs & Co., or Elliott, that he has any lien either upon the fund [574] or upon the money which he has agreed to pay them by his stipulation. Eor that reason he cannot join them as defendants in this action upon the facts set out in this complaint, and the demurrer was properly interposed upon the ground of the misjoinder of causes of action. (Nichols v. Drew, 94 N. Y. 22.)
Judgment affirmed, with costs.
Patterson and O'Brien, JJ., concurred; Ingraham, J., dissented.