Rodman v. Devlin ( 1881 )

Per Curiam :

The following opinion was delivered in this case by the learned judge who presided at the trial:

Van Brunt, J.:

Before considering the points raised by the counsel for the defendants, it is proper that we should see just what has been proven in this action.

The plaintiff proved the signing of the agreement in the complaint mentioned, which is as follows:

“ We, the undersigned, do hereby subscribe and agree to pay forthwith, the amounts set opposite our names for the purchase of property in Washington, Monroe and Athens counties, Ohio, as per memorandum annexed, being leasehold interest on 745 acres and 207 acres in fee, at the sum of one hundred and twenty-five thousand dollars ($125,000), payments to be made to Daniel Devlin, Esq., at Broadway Bank, trustee for the purchasers, in whose name the title to property shall be taken, said property to be put into an association for development, upon such terms as these subscribers may elect after this subscription is completed. New York, 23d February, 1865.”

He then proved the payment of his subscription to Daniel Devlin, and he now asks in this action for an account of the expenditure of this money, and that is all.

- The defenses are that the plaintiff has no cause of action; that the judgment in the case of Getty v. Devlin is a bar to this action.

As to the first defense, it is sufficient to say that a cestui que trust has the right to file a bill to call his trustee to an account, when no accounting has taken place between the parties after the purposes of the trust have been fulfilled.

The claim that the statute of limitation has barred the plaintiff’s claim is founded upon the assumption that the plaintiff had also a remedy at law as well as in equity.

I am entirely unable to see what cause of action at law the evidence in this case establishes. No fraud has been proven or attempted to be proven which would give the plaintiff a right of action at law. He has simply proven the deposit of the money in the hands of a trustee, and he now asks the trustee to account, and for this purpose he has made parties to this action every person who can have any interest in the accounting.

It seems to me that this is purely an equitable action, and that the plaintiff had no remedy at law.

The judgment in the Getty suit would probably have been a bar were it not for the form of the order entered in that action February 28, 1873, allowing an amended complaint to be. served. It was not at all necessary for the defendant Schell to answer in that action in order to protect his rights.

The plaintiffs asked for him all the relief he could get by answering, and all. that it was necessary for him to do was to see that his rights were protected upon the accounting; but before any accounting was ordered or decree entered, by the order allowing an amended complaint, all the relief in the action was limited to those who had answered, and the action was thereafter prosecuted only for the benefit of the parties who had complained or answered, and by this order the defendant Schell was deprived of all participation in the benefits of that action, and which he was entitled to by virtue of the complaint served upon him. I fail to see how any judgment in the Getty suit could be a bar to this action,”

We have gone over the points furnished us by the learned counsel and have examined the authorities cited. The result of this examination, and of a careful consideration of the case, is the opinion that the judgment of the Special Term, for the reasons there assigned, is correct and should be affirmed. We might dwell more fully and elaborately upon the positions taken, but without adding anything to their strength. We are quite satisfied to affirm the judgment upon this opinion of Mr. Justice Yan Brunt.

Present — Davis, P. J., Brady and Barrett, JJ.

Judgment affirmed, with costs.