Gillespie v. Van Buren

208 A.D. 242 | N.Y. App. Div. | 1924

Van Kirk, J.:

The motion to dismiss the complaint should have been granted.

The relation between the clients of the Kingston office and Kline was that of principal and agent, not debtor and creditor. The funds and securities placed in Kline’s hands by these clients were still the property of these clients. They never belonged to Kline; they were in the nature of trust funds in his hands. When they went into defendants’ hands, they remained the property of the clients. When they had been sold, the balance of the proceeds, above the amount for which they were pledged, remained the property of these clients. No title or interest in these funds ever passed to the plaintiff, the general assignee of Kline. The general assignee can take no other or greater interest in, or title to, the funds in question than rested in Kline. (Dickinson v. First National Bank, 64 App. Div. 254; Willard v. White, 56 Hun, 581.) There is no allegation in the complaint, direct or by inference, that Kline had any beneficial interest in the credit balance in the hands of the defendants, or in the account kept in his name; or that he made any purchases of securities or other property through defendants on his own behalf, all his transactions being on behalf of clients of the Kingston office and all moneys and securities transmitted by Kline to the defendants being the property of said clients.

A party who has no interest in the subject-matter to be accounted for cannot maintain an action for an accounting. The ultimate purpose of an accounting is to recover something. Unless it shall appear that Kline, during the time stated in the complaint, gave some orders on his own account and transmitted some of his own funds or securities to defendants, we think a cause of action will not be stated. It is also to be noted that the clients who are entitled to the credit balance in defendants’ hands are not made parties.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with the privilege to the plaintiff, upon payment of the costs, to plead over and, if so advised, to serve an amended summons and complaint within twenty days after notice of the entry of the order herein.

All concur.

Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with the privilege to the plaintiff, upon payment of the costs, to plead over and, if so advised, to serve an amended summons and complaint within twenty days after notice of entry of the order herein.