Harrison v. Union Trust Co. of New York

• Decision Date: 15 January 1895
• Citation: 144 N.Y. 326,39 N.E. 353
• Parties: HARRISON v. UNION TRUST CO. OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 326

39 N.E. 353

HARRISON

v.UNION TRUST CO. OF NEW YORK.

Court of Appeals of New York.

Jan. 15, 1895.

Appeal from supreme court, general term, Third department.

Action by Ida S. Harrison against the Union Trust Company of New York for removal of defendant as trustee in a certain mortgage given to secure bonds held by plaintiff, for an accounting, and to compel defendant to convey the mortgaged property to the purchaser at foreclosure sale. From a judgment of the general term (30 N. Y. Supp. 443) affirming a judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

Wheeler H. Peckham, for appellant.

Edward Winslow Paige, for respondent.

FINCH, J.

This action appears to be supplemental to that of Stevens v. Bank, 39 N. E. 68, the judgment in which we have recently affirmed. The complaint before us recites the long history of the Lebanon Springs Railroad, which is so fully stated in the case referred to as to render a formal repetition needless. We may go at once to the merits of the succeeding controversy, adding only such facts as have been hitherto unconsidered.

The demurrer interposed, questions the sufficiency of the complaint, asserting that it states no cause of action, and from the decision below overruling that demurrer this appeal has been taken. The complaint asks for three forms of relief, which are, the removal of the trustee, an accounting, and the execution of a conveyance to the purchaser on the last foreclosure. There is no case made for an accounting. The complaint does not allege that the trust company was ever in possession of the railroad or any part of it, or that it received any of its earnings or income, or that it ought to have done so and is chargeable therefor, or that it ever had a title, legal or equitable, to the road, or has any funds to which the bondholders are entitled. The facts detailed show that the trust company has always stood in the attitude merely of the mortgage trustee, foreclosing and selling when its trust duty required, never buying at any such sale, or taking possession under it, or operating or managing the railroad. The only money it is charged with receiving is the check of Duncan on the first New York sale, and that of Park on the first Vermont sale, both of which checks it failed to collect, and thereby became responsible for the purchase price of $125,000. But the bondholders, who might have required a distribution among themselves of that sum, which would have been an affirmance of the sale, have chosen, as they had a right to do, to disaffirm the sale, and require a resale of the property. That has occurred, and the bondholders in a new corporate capacity have become the purchasers. The result ends all liability of the trust company upon the uncollected checks, and no other money to which the plaintiff is entitled is alleged to have come to the hands of such company, and no facts are pleaded which admit of any such inference. There is no cause of action for an accounting.

Nor can the action be sustained as one to compel a conveyance merely. The plaintiff has already recovered one judgment which explicitly awards that relief, and a court does not sit to repeat over again the identical decree which it has already rendered, and which simply needs to be enforced. A foreclosure under the Lebanon Springs mortgage and under the Harlem Extension mortgage has ended in a sale. The intermediate Sackett suit and the new mortgages by purchasers have been sponged out, or the possible rights they created have been concentrated in Foster, who has conveyed to the final purchaser. The foreclosure action which worked this result was one in which the bondholders were plaintiffs. The trust company was joined as a party defendant. No relief was asked specially against it, and so it made no defense and interposed no answer. There was no apparent reason why it should. But thereafter, without notice to the trust company, the foreclosure judgment was amended by adding a direction which required that company to convey. After it was made, notice of the amendment was given to the trust company, which did not move to strike it out or annul it, but chose to take no action. The complaint in this suit stands upon the validity of that amendment. It does not admit its invalidity, and seek to cure the defect by a new action demanding a relief which had been ineffectually awarded. No such ground is taken. On the contrary, the plaintiff assumes the validity of the amendment, and assails the trust company for disobedience of the command to convey. So that, if there was nothing else about the case, we should hold that a new decree, merely repeating an existing judgment, was superfluous, and not a right which the plaintiff can lawfully claim.

But there is something else about the case. The plaintiff seeks the...