1 N.Y.S. 161 | N.Y. Sup. Ct. | 1888
If this is to be regarded as an action in the nature of a creditors’ bill, as the plaintiffs have no judgment, the motion for an injunction should be denied. Southard v. Benner, 72 N. Y. 426,427. It is claimed, however, that the action is to be regarded as one brought by a beneficiary under a trust, to protect the trust fund, and prevent its illegal disposition, pending an inquiry into the rights of the various parties to share in such fund. The plaintiffs cite the remarks of Danforth, J., in the case of Crouse v. Frothingham, 97 N. Y. 113, in support of their position that they can maintain this action. , In speaking of the duties of an assignee, the learned judge says: “If such an assignee refuses, in a proper case, to proceed, and get in the assigned property, the creditors collectively, or one in behalf of all, who may come in and join, may compel the execution of the trust in equity. * =!■• * Ho doubt, the creditors might also sue if the assignee improperly refused to do so.” In that case, the plaintiffs were, however, judgment creditors, and the precise point made in this case did not, therefore, arise. The same may be said of Richardson v. Thurber, 104 N. Y. 606, 11 N. E. Rep. 133; that action being brought by a judgment creditor to have the assignment declared void. The plaintiffs also rely upon the case of Preston v. Spaulding, 120 Ill. 231, 10 N. E. Rep. 903, where the court permitted a creditor at large to intervene by suit for the protection and preservation of the fund; the assignee having neglected to take proper proceedings for that purpose. Preston v. Spaulding was a very well considered case, and the reasoning of the court commends itself to my mind. The right of a beneficiary under a trust, where the trustee refuses to protect his interests, to proceed by action in his own name, has been established in a variety of cases other than those relating to assignments. Weetjen v. Vibbard, 5 Hun, 265, and eases cited at page 267, by Daniels, J.; Railroad Co. v. Nolan, 48 N. Y. 513. It. is distinctly averred in this case that the assignee has refused, after demand,