The determination of a single question discussed on the argument will dispose of this appeal. The plаintiff was one of two bondholders protected by a trust mortgage. His complaint showed all the faсts necessary to a judgment of foreclosure if the action had been brought by the trustee, and sought to justify his intervention as bondholder and plaintiff in the action upon the ground that the trustee had left this country, аnd was somewhere in foreign parts, and had become insane. On the trial the fact of such absence was shown; that the family of the trustee had also departed to join him *192 abroad; and that inquiries madе in natural and reasonable directions were answered by the statement that the trustee had beсome insane. The Special Term dismissed the complaint upon the ground that the bondholder could not sue where there was a competent trustee unless the latter refused to act, and wherе the trustee had become incompetent it was necessary first to procure the appointment of a new trustee. The dismissal of the complaint did not go upon any failure of proof, but аssuming the allegations of the complaint to have been established, still held that the plaintiff could not sue for' a foreclosure. An apjieal ivas taken to the General Term, which reversed the judgmеnt and ordered a new trial. Instead of going back and presenting his defense so far as he had onе, the defendant, who was the remaining1 bondholder, and for whose interest a foreclosure was as much of a necessity as for that of the plaintiff, adopted the perilous experiment of an appeal to this court, with the required stipulation for judgment absolute. It appeared on the argument that the defendant was injured only at a single point: not by the foreclosure; not by its natural and prоper result; not even by the appointment of a temporary receiver; but by a sale of the property claimed to have been collusive, and which vested title in the plaintiff for less than the real value. All that could have been remedied on a new trial.. A re-sale could have beеn ordered, or the plaintiff compelled to account for the property at its just and fair value, which Avould liairn given to the defendant everything to Avliich he was entitled. Seeing the situation and observing the defendant’s danger, we suggested to his counsel on the argument the prudence of escaping it by a Avithdrawal of his appeal. He declined the suggestion, and if any hardship results it will not be the fault of the сourt.
We are satisfied that the plaintiff had the right to maintain the action, and that fact alone justified the reversal of the judgment by the General Term. It is conceded that the beneficiary may sue Avlierе the trustee refuses, but that is because there is no other remedy, and the right of the bond
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holder, otherwise, will go unredressed. The doctrine does not rest rigidly upon a technical ground, but upon a substantial necessity. In the case of a corporation a stockholder may sue, not only because it rеfuses, but because those who represent it are the very parties who have committed the wrong.
(Brinckerhoff v. Bostwick,
It is unnecessary to consider or discuss other questions, which were numerous. What we have said requires us to affirm the order of the General Term and award judgment absolute against the defendant upon his stipulation, with costs.
All concur.
Ordered accordingly.