58 N.Y. 473, Davis v. Stover

Citation:58 N.Y. 473
Party Name:THEODORE M. DAVIS, Receiver, etc., Respondent, v. HENRY D. STOVER, impleaded, etc., Appellant.
Case Date:October 06, 1874
Court:New York Court of Appeals

Page 473

58 N.Y. 473

THEODORE M. DAVIS, Receiver, etc., Respondent,

v.

HENRY D. STOVER, impleaded, etc., Appellant.

New York Court of Appeal

October 6, 1874

Argued Sept. 30, 1874.

COUNSEL

Addison Brown for the appellant. Plaintiff was authorized to employ help and pay for necessary services for the protection and benefit of the estate. ( Hill v. Trustees, 28

Page 474

N.Y. 673; 47 Id., 366; 17 Barb., 391; Noyes v. Blankman, 6 N.Y. 569; Col. Ins. Co. v. Stevens, 37 Id., 536; 41 Id., 325.) It was a proper counter-claim. (43 N.Y. 419; 48 Id., 674.) No objection to the form of the pleadings can be first taken here. ( Waddell v. Darling, 51 N.Y. 327, 333; Jackson v. Van Slyke, 52 Id., 645; McKnight v. Develin, Id., 399.)

Sutherland D. Smith for the respondent. Plaintiff had no authority to bind the estate by any such contract as the evidence tended to prove. (13 N.Y. Stat. at Large, 114; In re Van Allen, 37 Barb., 225.) The claim is against plaintiff individually, not on the trust funds. ( Bowman v. Tallman, 2 Robt., 385; S. C., 41 N.Y. 619; Ferrin v. Myrick, 41 Id., 315; Mygatt v. Wilcox, 45 Id., 306; Noyes v. Blakeman, 6 Id., 580; Austin v. Munro, 47 Id., 360; Bloodgood v. Sears, 64 Barb., 71; 2 Williams' Exrs., 1510; Myer et al. v. Cole, 12 J. R., 349.) The plaintiff is but an agent of the comptroller of the currency. ( Kennedy v. Gibson, 8 Wall., 500.)

RAPALLO, J.

It is well established, that a receiver, executor or trustee, has the right to defray, out of the trust fund in his hands, expenses necessary for its protection, and where a debtor to the estate is employed to perform necessary services for its benefit, we see no objection to the...

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10 practice notes
  • 179 A. 245 (Pa. 1935), 12, In re Anthracite Trust Co.
    • United States
    • Pennsylvania Supreme Court of Pennsylvania
    • 27 Mayo 1935
    ...crediting it on their notes. Equity will at once credit it without going through the formality of payment and repayment: Davis v. Stover, 58 N.Y. 473; Eames v. Bagg, 8 A.D. 541, 40 N.Y.S. 858; 53 C.J., section 127, page 104. The remaining exceptions must, however, be dismissed for a differe......
  • 17 Pa. D. & C. 657 (Pa.Com.pl. 1932), 1435, Thacher's Estate
    • United States
    • 9 Diciembre 1932
    ...due by the testator in his lifetime for moneys of the corporation received by him as its treasurer. See, also, Davis, Receiver, v. Stover, 58 N.Y. 473. But in Stephens et al., Admin'rs, v. Cotterell, 99 Pa. 188, the administrator of an insolvent estate sold goods of the estate to defendant ......
  • 35 A. 686 (Pa. 1896), 55, Oyster v. Short
    • United States
    • Pennsylvania Supreme Court of Pennsylvania
    • 5 Octubre 1896
    ...v. Brown, 12 Gray (Mass.), 233; Hade v. McVay, 31 Ohio 231; Cox v. Volkert, 86 Mo. 505; Clarke v. Hawkins, 5 R.I. 219; Davis v. Stover, 58 N.Y. 473; Cook v. Cole, 55 Iowa 70; Van Wagoner v. Paterson Gas Light Co., 23 N.J. 283; State Bank v. Bank of New Brunswick, 3 N.J. Eq. 266; Berry v. Br......
  • 89 N.Y. 169, Lent v. Howard
    • United States
    • New York New York Court of Appeals
    • 30 Mayo 1882
    ...53 Id . 263, 266.) The services of Bailey are an equitable set-off on this accounting. ( Morton v. Ludlow, 5 Paige, 519; Davis v. Stover, 58 N.Y. 473; Smith v. Fox, 48 Id . 674; Smith v. Felton, 43 Id . 419.) Technical objections, which would be valid at law, will not avail to defeat an equ......
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10 cases
  • 179 A. 245 (Pa. 1935), 12, In re Anthracite Trust Co.
    • United States
    • Pennsylvania Supreme Court of Pennsylvania
    • 27 Mayo 1935
    ...crediting it on their notes. Equity will at once credit it without going through the formality of payment and repayment: Davis v. Stover, 58 N.Y. 473; Eames v. Bagg, 8 A.D. 541, 40 N.Y.S. 858; 53 C.J., section 127, page 104. The remaining exceptions must, however, be dismissed for a differe......
  • 17 Pa. D. & C. 657 (Pa.Com.pl. 1932), 1435, Thacher's Estate
    • United States
    • 9 Diciembre 1932
    ...due by the testator in his lifetime for moneys of the corporation received by him as its treasurer. See, also, Davis, Receiver, v. Stover, 58 N.Y. 473. But in Stephens et al., Admin'rs, v. Cotterell, 99 Pa. 188, the administrator of an insolvent estate sold goods of the estate to defendant ......
  • 35 A. 686 (Pa. 1896), 55, Oyster v. Short
    • United States
    • Pennsylvania Supreme Court of Pennsylvania
    • 5 Octubre 1896
    ...v. Brown, 12 Gray (Mass.), 233; Hade v. McVay, 31 Ohio 231; Cox v. Volkert, 86 Mo. 505; Clarke v. Hawkins, 5 R.I. 219; Davis v. Stover, 58 N.Y. 473; Cook v. Cole, 55 Iowa 70; Van Wagoner v. Paterson Gas Light Co., 23 N.J. 283; State Bank v. Bank of New Brunswick, 3 N.J. Eq. 266; Berry v. Br......
  • 89 N.Y. 169, Lent v. Howard
    • United States
    • New York New York Court of Appeals
    • 30 Mayo 1882
    ...53 Id . 263, 266.) The services of Bailey are an equitable set-off on this accounting. ( Morton v. Ludlow, 5 Paige, 519; Davis v. Stover, 58 N.Y. 473; Smith v. Fox, 48 Id . 674; Smith v. Felton, 43 Id . 419.) Technical objections, which would be valid at law, will not avail to defeat an equ......
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