88 N.Y. 69, Wetmore v. Hegeman

Citation:88 N.Y. 69
Party Name:GEORGE C. WETMORE, Respondent, v. BENJAMIN A. HEGEMAN, Executor, etc., Appellant.
Case Date:February 07, 1882
Court:New York Court of Appeals
 
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Page 69

88 N.Y. 69

GEORGE C. WETMORE, Respondent,

v.

BENJAMIN A. HEGEMAN, Executor, etc., Appellant.

New York Court of Appeal

February 7, 1882

Argued Jan. 27, 1882.

COUNSEL

Samuel Hand for appellant. This action could only be revived in the names of the real parties in interest, Therasson & Bryan. ( Phillips v. Melville, 10 Hun, 211; Code, § § 755-757; Hubbell v. Medbury, 53 N.Y. 98-102.) Upon the death of the trustee the trust vested in the Supreme Court if at all.

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( Curtis v. Smith, 60 Barb. 13; Phelps v. Masterson, 3 Robt. 517, 520; Hawley v. Ross, 7 Paige, 103, 106, 107; 2 Hun, 93; Dias v. Brunel, 24 Wend. 9; Moses v. Murgatroyd, 1 Johns. Ch. 118, 126, 127, 128; Kipp v. The Bank of New York, 10 Johns. 63, 65; Willis on Trusts, 53, n. 111; Matthews on Executors, 100, 119, 245.) The claim of Therasson & Bryan, or of their alleged trustee, is barred by the statute of limitations, more than twelve years having elapsed since they purchased from the receiver. ( Beach v. Reynolds, 64 Barb. 506, 519, 521.) The action of Therasson & Bryan in procuring the transfers was violative of 2 Revised Statutes, 288, section 71, prohibiting the purchase by an attorney of a chose in action with intent to sue thereon. ( Mann v. Fairchild, 2 Keyes, 106; Baldwin v. Satson, 2 Barb. Ch. 1396.)

William Allen Butler for respondent. Being the trustee of an express trust, and having the legal title, Wetmore had the right to maintain and continue the action in his own name without joining the parties to whom he was liable to account for the proceeds of any recovery. ( Considerant v. Brisbane, 22 N.Y. 389; Grennell v. Schmidt, 2 Sandf. 706; Rowland v. Phalen, 1 Bosw. 43; Reed v. Harris, 7 Robt. 151; Cummins v. Barkalow, 4 Keyes, 514; Allen v. Brown, 44 N.Y. 228; Green v. Niagara F. Ins. Co., 6 Hun, 128.) The objection taken at the trial that, at the death of Blackwell, his title did not devolve upon his administratrix the trust under which he held, was untenable. ( Bunn v. Vaughan, 3 Keyes, 345; S. C., 5 Abb. Pr. [N. S.] 269; Emerson v. Bleakley, Id . 350; Boone v. Citizens' Bk., 84 N.Y. 83, 87.) The defense attempted under the statute against champerty was wholly without foundation. ( Sheridan v. The Mayor, 68 N.Y. 30; Rasquin v. The Knickerbocker Stage Co., 12 Abb. Pr. 324; Rooney v. Second Ave. R. R. Co., 18...

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