177 A.D. 158 | N.Y. App. Div. | 1917
Lead Opinion
The pleadings consist of a supplemental and amended complaint and separate demurrers thereto by each of the three appellants on the grounds of insufficiency of facts alleged, a defect of parties defendant in that the purchaser at a foreclosure sale of the premises described in the complaint was not joined, failure to join the present owner and all persons interested in the premises, and on other grounds not argued on the
The learned counsel for appellants contends that the complaint is solely for equitable relief and that it cannot be sustained for the reason that the facts alleged show only a cause of action at law. If that were so the demurrers should have been sustained. (Low v. Swartwout, 171 App. Div. 725.) The basis of the argument in support of that contention is, however, that the plaintiff could have recovered the funds in an action for conversion or for money had and received, and Squire v. Ordemann (194 N. Y. 394) and Havana C. R. R. Co. v. Knickerbocker Trust Co. (198 id. 422) are cited as authorities for such remedies. It is, however, a well-established rule that an action for an accounting for the misappropriation of trust funds will lie either against an express trustee or a constructive trustee. (Lightfoot v. Davis, 198 N. Y. 261; Bosworth v. Allen, 168 id. 157; Hart v. Goadby, 138 App. Div. 160; Steele v. Leopold, 135 id. 247, and decisions there cited at p. 255; Woodbridge v. First National Bank, 45 id. 166, 170.) On the authority of those decisions the allegations of the complaint sufficiently show a cause of action in the remainder-men for an accounting against Herbert A. Weeks and the company, for since they received for the individual account of the executrix the trust funds, knowing that they were trust
The order should be reversed as to the defendant Marjorie C. Weeks, without costs, and the motion to that extent denied, without costs, and in all other respects affirmed, with ten dollars costs and disbursements to the respondent, with leave to the other defendants, appellants, to withdraw their demurrer and to answer upon payment of said costs and ten dollars costs of motion in the court below.
Clarke, P. J., Smith and Page, JJ., concurred.
Concurrence Opinion
I concur in result.
Order reversed as to defendant Marjorie C. Weeks, without costs, and motion to that extent denied, without costs; in all other respects affirmed, with ten dollars costs and disbursements to respondent, with leave to other defendants, appellants, to withdraw demurrer and to answer on payment of costs.