72 A.D. 532 | N.Y. App. Div. | 1902
This does not appear to be a case in which there should be any relaxation of the rule that trustees, however numerous, constitute in law but a single person, the concurrence of all of whom is necessary to the validity of any transaction involving the exercise of discretion. (Cooper v. Illinois Central R. R. Co., 38 App. Div. 22, 26, and authorities there cited.) Sometime prior to the commencement of this action Harris Cohen and Abraham Cohen, the owners of the property Ho. 10 Baxter street, Hew York city, being desirous of paying a certain mortgage upon such property, and being uncertain whether the payment should be made to the plaintiffs in the present action or to the defendant as substituted trustee under the last will and testament of Eliza Eisner, deceased, brought an action on January 3, 1901, in. which all of the parties to the present action were defendants, praying for leave to deposit the principal and interest due upon said mortgage with the court, and praying that the parties to this action might be made to interplead concerning such fund. Such proceedings were had in said action that on February 13, 1901, a final judgment and decree was made directing the deposit of $8,511.79 with the City Trust Company to the credit of this action, discharging the lien of the mortgage upon such premises upon such payment and directing “ the defendants Jacob Fritz and Mary Fritz as plaintiffs, and the City Trust Company of Hew York as substituted trustee of and under the last will and testament of Eliza Eisner, deceased, as defendant,” to interplead concerning their respective claims to the fund in dispute. Pursuant to this decree the present action was commenced, and being brought on for trial has resulted in a judgment awarding to the defendant, out of the fund of $8,511.79, the sum of $2,442.74, together witli interest on said last-named sum for six years at five per cent. From the judgment entered plaintiffs appeal to this court.
There is practically no dispute as to the facts in the case, and the question presented for determination is whether if three trustees own a bond and mortgage, executed to them as such, can two of them sell and assign such bond and mortgage without the consent or concurrence of the third trustee? The court at Special Term has decided that they cannot, and we find no reason to differ in Our conclusion from the decision of the Special Term. Joseph Stern,
The plaintiffs had notice of the fact that they were dealing with trustees, for the -bond and mortgage were made to Joseph Stern, Julius -Eisner and Mark H. Eisner in their representative capacity. Mr. Cohen inquired at the time of the transfer -why Mark Eisner did not join in the assignment, was told that Mark was under an injunction, and that he was then in Europe. This, we think, was. sufficient to-put them upon inquiry, and if they chose to purchase
The judgment appealed from should be affirmed.
All concurred, except Hirschberg, J., dissenting, and Bartlett, J.,- faking no part.
Judgment affirmed, with costs.