46 N.Y.S. 228 | N.Y. App. Div. | 1897
The purpose of this action was to procure an- accounting by the defendant Rankin as trustee for the plaintiff, the defendant-Christian and himself. The parties, by agreement, entered upon the construction of five houses, the arrangement being that the defendant Rankin should take the title to the houses, should act- as treas^ urer, pay all bills and render an account to li-is cestui gue trust. The houses, when finished, were to be sold and the proceeds divided between the parties. Each party was to -contribute onedhird of the money necessary, and the same was to be paid to Rankin from time to time, as the necessity of construction required. The evidence warranted the conclusion that Rankin' was to account whenever a house should be- sold. The action .was brought after three houses had been sold and after Rankin had refused, upon demand, to account for the proceeds. He claimed that he was not to account until all the houses were sold. This question is not of paramount. importance, for after' the action was at -issue the remaining two houses were sold, and all of the parties were brought in and joined in the accounting action brought by the plaintiff.
It appeared upon the trial before the referee that Rankin kept no regular books, and that his accounts were in a very unsatisfactory state, some being found in a journal book, some in checks, and-some in a check book, from which he testified, but which does not seem to have been produced upon the trial. For many of his expenditures he had no vouchers, and his verbal account of a large -number of items is confused, in some respects contradictory, and upon the whole very unsatisfactory. The general rule of law applicable to a trustee burdens him with the duty of showing that the account which he renders and the expenditures which he claims to have, made
The defendant Rankin claims commissions. The claim has been disallowed by the referee. This finding' could have been based upon the ground that it was not within the contemplation of the parties that Rankin should receive any compensation by way of commissions. Such ground would have the support of evidence and of authority to sustain it. (2 Perry on Trusts, § 918; Blunt v. Syms, 40 Hun, 566.) Or the referee could have found that, by reason of the mismanagement of the estate, he had forfeited his right to commissions. Either ground is a sufficient answer to the claim now made. (Cook v. Lowry, 95 N. Y. 103.)
The award of costs was within the discretion of the referee, and we find no reason for interfering with its exercise. (2 Perry on Trusts, §§ 891-900.)
The judgment should be affirmed, with costs.
All concurred. '
Judgment affirmed, with costs.