222 A.D. 619 | N.Y. App. Div. | 1928
The testators of the plaintiff and the defendants, appellants, were at times members of a protective committee to safeguard the rights of the stockholders of the Houston and Texas Central Railway Company. Originally formed in 1889, the committee continued to function, with changes of personnel and under various supplemental agreements, until 1925. It then consisted of the respondents Fowler, Landale and Fitch. These gentlemen arranged finally for a sale of the stock intrusted to them and retained from the purchase price,, with the consent of the stockholders, $150,000 as compensation for services. In this action it is sought to impress a trust upon this $150,000 for the benefit of the testators of the appellants who had ceased to function as members of the committee and who had died long prior to the completion of the committee’s task.
The complaint and counterclaim which have been held invalid allege that the respondents “ as surviving members of the committee, and with the consent of each stockholder represented by the committee, deducted and retained approximately the sum of $150,000 as compensation for the services rendered by all of the members of the committee, including the deceased members, under the aforesaid agreements, and that said defendants Fitch, Landale and Fowler received and hold said sum as fiduciaries for the benefit of all the said members, including plaintiff’s testator, to the extent of the reasonable value of the services rendered by the said members respectively.”
Our view of the substantive questions presented on this appeal renders it almost academic. The appellants concede the obviously correct statement of the law that the respondents had a right to arrange for compensation for themselves and owed no duty to prior members of the committee to safeguard their interests. On the Other hand, the respondents concede the equally obvious proposi
The orders granting respondents’ motions to dismiss the claims of the defendants, executors, should be reversed, with ten dollars costs and disbursements to the appellants, and said motions denied, with ten dollars costs.
The orders granting respondents’ motions to dismiss the complaint should be reversed, with ten dollars costs and disbursements to the appellants, and said motions denied, with ten dollars costs, with leave to said defendants to answer upon payment of said costs.
Dowling, P. J., Merrell, Martin and O’Malley, JJ., concur.
On each of first two appeals: Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
On third appeal: Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to the defendant to answer within twenty days from service of order upon payment of said costs.