109 N.E. 625 | NY | 1915
The plaintiff is a member of the bar. He brings this action to impress a lien on property of the Brooklyn Consolidated Drug Company, recovered through his services. One Wischerth, the treasurer and general manager, had misappropriated the property of the corporation and owed it upwards of $26,000. The plaintiff was retained by a director to compel the delinquent officer to account. The director refused to be personally liable for the fees. He agreed, however, that the plaintiff should have a lien on the cause of action and on any property recovered. This agreement was found by the trial court, and the finding has been unanimously affirmed. Under that retainer, an action was brought to compel Wischerth to account for his official conduct in the management and disposition of the funds and property committed to his charge, to compel him to pay over the *551
moneys found due upon such accounting, or the value of any property misappropriated to his own use, or lost or wasted by the violation of his duty. That is an action which a director has the right to maintain (General Corp. Law, secs. 90, 91, formerly Code Civ. Pr. sec. 1781; Miller v. Quincy,
We think the lien should be sustained. We assume, in accordance with our decision in Matter of Meighan (
The point is made that relief must be denied the plaintiff because since this action was begun, the corporation was adjudged a bankrupt, and the trustee in bankruptcy *553
substituted as a defendant. In such circumstances, the trustee's title is subject to the plaintiff's equitable lien, and to the pending action to foreclose it (Metcalf v. Barker,
The facts essential to the plaintiff's case are established by the findings. A new trial is, therefore, needless (Code Civ. Pro. sec. 1337; Farleigh v. Cadman,
WILLARD BARTLETT, Ch. J., WERNER, COLLIN, CUDDEBACK, MILLER and SEABURY, JJ., concur.
Judgment reversed, etc. *554