Opinion
Argued April 14, 1884
Decided April 22, 1884
L.A. Gould for appellant. L.L. Van Allen for respondents.
In accordance with the opinion of the General Term, rendered on a previous appeal, the referee has dismissed the plaintiff's complaint, although without any change of his findings of fact. The decision virtually concedes that title to the claim in controversy passed to the plaintiff as assignee by force of the general assignment made by Lockwood Co., but holds that the trust was ended and discharged, as the result of the settlement of December 15, 1874, so that the plaintiff ceased to be assignee, and lost all right to sue in that capacity. The plaintiff, once vested with title to this demand against the government, has never transferred or assigned it to anybody, and remains its owner in his trust capacity, with the right to collect it, unless in some manner its ownership has vested elsewhere. The papers executed in 1874 are claimed to have worked such a result by operation of law, but we do not agree with that conclusion. Lockwood Co., for certain expressed considerations, released to the assignee as an individual, and on account of debts due him from the firm, all their right and interest in the assets which passed by the assignment. They had no title to any of them. Their sole remaining right was to any surplus proceeds which might be left after all the trusts had been fulfilled. That right, and that only, they transferred to the plaintiff as an individual. As a creditor of the firm he was already both trustee and cestui que trust. The arrangement made enlarged his rights in the latter character. On a settlement of his accounts as trustee he became thus entitled to retain not only his own debt but any surplus remaining after all debts were paid and discharged, and this release was made more valuable to him by the agreement of the assignors to pay off all outstanding debts of the firm, and by the bond of indemnity conditioned for the faithful performance of that agreement. But this arrangement did not necessarily transfer to him as an individual the assets which he held as trustee. To reduce them to possession he must sue for them by the only title which he had, which was that of assignee, since his individual rights, whether greater or less, existed only as a beneficiary in the assets thus held. How large or small his ultimate personal interest in them would prove to be depended upon the exigencies of his trust. The debts protected by the assignment were not all paid. The referee finds that some liabilities of the firm were outstanding. While Lockwood Co. agreed to pay them and a bond was given to the assignee as indemnity against them, that did not discharge his trust obligation to the creditors, or put an end to his trust duties. The bond might prove to be an inadequate protection. Then, too, the individual creditors of the members of the firm had rights under the assignment by its terms, and against these the bond was no protection. As to such debts the referee finds there is no proof that the trust has been performed. He further finds that the plaintiff has never accounted; that it is not shown that he has advertised for claims nor that his bond has been discharged; that he has never resigned his trust nor been removed. While any of the assigned assets remain to be collected for the benefit of persons entitled to share in the distribution the trust is not ended, and the trust duties continue. Upon the facts found we think the title of the assignee was not lost or merged and that as such he was entitled to collect this claim. ( Brennan v. Willson, 71 N.Y. 502; Em. Ind. Sav. Bank v. Roche, 93 id. 380.) That in the end such collection, through the proper and lawful settlement of the trust, might inure mainly, or even wholly, to his personal benefit does not weaken or destroy his title as trustee.
On the argument before us the respondent has not conceded the plaintiff's original title under the assignment. A portion of the money restored by the government was paid by the old firm of Lockwood Co., and as to that, it is claimed the plaintiff cannot recover. Such prior firm was dissolved by the death of Le Grand Lockwood, sen., but all its assets passed to the survivors who constituted the new firm. They became the legal owners. The referee finds that they took possession of the assets and assumed the liabilities of the old firm and continued the business in the same partnership name; that before the death of the deceased partner he had withdrawn all his share of capital and assets and was still a debtor to the firm. The new firm having legal title to the assets could transfer them ( Egberts v. Wood, 3 Paige, 525; Nehrboss v. Bliss, 88 N.Y. 600; Hoyt v. Sprague, 13 Otto, 613; Palmer v. Myers, 43 Barb. 513), and if the executrix of the decedent had any equity to require their application to debts of the old firm as distinguished from those of the new, which her action made doubtful, she released the assignee from all such claims by her general release, and so ratified, if that were needed, the transfer to the assignee and freed the assets in his hands from any such claim. Upon the record we see no reason for denying the right of the assignee to recover the whole amount of the claim, less the charge paid to Colgate for services rendered in the collection from the government.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.