
    Biddle Purchasing Company, Respondent, v. Valentine P. Snyder and Morris H. Smith, Individually and as Committee of the Creditors of The Archer and Pancoast Company, Appellants.
    First Department,
    December, 1905.
    Demurrer—complaint sustained in action by creditor for accounting by committee of creditors of defunct corporation.
    An action in equity for an accounting lies on behalf of a creditor of a defunct corporation against the members of a committee of creditors thereof who have received money from the plaintiff in trust to protect the interests of creditors and who are charged with wasting and squandering the same.
    
      Such complaint is not demurrable because it sets out the letters .of the defendant, committee whereby .the .plaintiff was induced to .pay the money, together with reports of ¡such committee. Such letters and Reports are not- to be taken as án admission by the plaintiff that it has already had an accounting when the truth of the statements in -said letters -and reports is not admitted, for they merely-show facts establishing the fiduciary relation-of the par,ties. .
    There is no defect of parties, because neither the defunct -corporation nor .a new corporation which the' .defendants, as. appears by their report, organized in place thereof, are joined as defendants, there being no relief asked against either corporation.
    Such action being brought by the '.plaintiff on its -own behalf -and' not in the interests of ether creditors may be maintained -against' the defendants both ’ individually and as trustees.
    Appeal by the defendants, Valentine P.. Snyder and another, individually and as committee of the creditors of the Archer -atad Pancoast Company, from an interlocutory judgment of - the Supreme Court in favor of the plaintiff, entered in the office .of the clerk of the county of Hew York on the '7th day .of August, 1',905, upon the decision of the court rendered after a trial at the Hew York-Special Term.-
    
      William F. Goldbeck, for the appellants.
    
      Ralph S. Rounds, for the respondent.
   McLaughlin, J.:

„ The defendants, individually and as committed of creditors of the Archer and: Pancoast Company, a corporation, demurred to the complaint. The demurrers were overruled, and they have appealed. They urge upon the appeal that the -demurrers should have been sustained (1) because the complaint does not state facts sufficient to constitute a cause of' action'; (2) because there is a defect of parties defendant,, in that.neither the Archer and Pancoast Company ¡mor the Archer-Pancoast Company is joined.; and (3) for the reason that causes of action have been improperly united, viz., a cause of action against them individually and one against them as a committee of the creditors of the Archer and Pancoast Company. .

The action is. in equity for an accounting. The complaint alleges in substance that on or about" the 14th of Hovember, 1898, the plain-. tiff was .the owner and holder of thirty-five certain■ promissory notes in writing made by the Archer and Pancoast Company, which amounted in the . aggregate, to $17,500;-that -on said day certain holders of similar notes of the Archer and Pancoast Company caused to be issued to- all holders of such motes^ a circular letter signed by them, which, letter is made a- part of the complaint, and inclosed with it was the form of a letter to the committee,, a copy of which is also- annexed to the complaint; that thereafter and on or about the 16th of March, .1899, the plaintiff received' a letter, from the defendants requesting the said noteholders to deposit with the defendants certain sums of money upon the trusts and conditions and for the purposes set forth in the said letter; ” that on the 22d of the same month, relying upon the statements contained in these letters, the plaintiff deposited with the defendants the sum of $5,250 in cash, and the, said thirty-five promissory notes of the Archer.and Pancoast Company, in trust and for the purposes set forth in their letters ; that the defendants received the same in trust for the purposes stated; that subsequently the defendants, as trustees of the plaintiff, received.and.realized large sums of money and property of large value which should have been held and administered by them for the benefit of the" plaintiff under the trust, but that they wasted and' squandered a large portion of the same, using the balance for unauthorized and unlawful purposes, and that the- plaintiff is. ignorant of the amount of money so received, wasted and squandered, except that it has been informed the property so received was "of the value of upwards of $700,000. Reference is then made to- a report of the defendants, which is a part of the complaint, which shows the purchase by defendants, as a committee for certain, creditors- of the Archer and P'ancoast Company, of certain property sold under a mortgage foreclosure for $101,500, which, subsequently had been turned over by defendants to- a new corporation formed by them and called the Archer-Pancoast Company. This report further shows that the amount contributed by creditors-for the purposes set out in the letters was about $50,000, and, in order to pay the balance o-f the purchase price of the property the: defendants had borrowed $50,000- and given a mortgage upon the property taken to secure the payment of the same, and that this property had been turned over to the Archer-Pancoast Company subject to the mortgage.

The complaint further charges that subsequent to the report referred to, and on or about the 21st of February, 1900, the defendants sent to .plaintiff another1 report to' the effect’ that' it was to the best interest of the creditors of the Archer and Pancoast Company, who had previously contributed sums of money, that they should make a further contribution, to the end that the mortgage given by defendants might be discharged; that for this purpose .a contribution was solicited equal in amount to the one first" made by the plaintiff; that the plaintiff, in pursuance of this request and relying upon statements made by defendants contained in their various ' letters and reports, made a further contribution of $5,250, which defendants received upon the. same trust and conditions above stated. The complaint further charges ■ that the defendants have wasted and squandered a large part of the money received, and that,, although a demand has. been made that they account therefor,, they have wholly failed and neglected so to do.'

‘ The judgment demanded is that an accounting be had between plaintiff-and defendants of their actions and proceedings as trustees, and that upon the completion of said accounting they and each- of them be decreed to pay over to' the plaintiff .such stim as shall be-ascertained to be due to it from them. , ’ •

The appellants contend that the complaint upon -its face shows that the plaintiff is not entitled to the relief demanded; -that defendants’ letters- and reports referred to in and nmde a part of the complaint" are, in effect, an accounting. In other words, that ."the letters, and reports show that the plaintiff has already had an accounting, and for that reason sufficient facts aré not stated t.o justify the court in exercising its equitable powers in plaintiff’s behalf. I am unable, after a careful consideration of the allegations of the complaint,'to agree with the appellants’ contention. The plaintiff does not admit-the truth of the statements contained in defendants’ letters and reports-because it has-annexed them to and made them a part of the complaint. They are set forth for the purpose of- showing the relation that existed between the parties, and- which entitles the plaim tiff to the relief asked; that the defendants, in accepting the plaintiff’s money, did so as .its agent,or trustee for a specific purpose, which was the acquisition of certain property for the benefit of; creditors of the Archer and Pancoast Company. These- reports' and letters, taken iii connection with the allegations of the complaint, show that a fiduciary relation existed between the parties, by reason of which property and property interests were intrusted to defendants. If these allegations be true, then plaintiff is entitled to an accounting, and the burden is upon the defendants to.show what they did with the money and. property while it was in their possession or while they had charge of it. (Rose v. Durant, 44 App. Div. 381; Marvin v. Brooks, 94 N. Y. 71.)

Nor is there a defect of parties defendant. Neither of the corporations mentioned' is a necessary party. As to the Archer and Pan-coast Company, the old corporation, there is no claim made either for or against it,' nor is -there any claim made for or against any of its officers or directors. So far as appears from the complaint, neither the plaintiff nor the defendants had any official connection with that corporation, nor, indeed, any relation other than as creditors of it. As to the new corporation, the Archer-Pancoast Company, there are no allegations in the complaint that such a corporation existed, except so far as that may be inferred from statements made by the defendants in the letters and reports annexed to the complaint. But even if its existence be admitted, it is not a necessary party, inasmuch as the complaint does not seek to obtain an accounting from it or to make it liable in any respect, nor is there any claim made that the defendants, as trustees, transferred to it the property which they held in trust; but the title to the property transferred is not- questioned, nor are any facts stated which would warrant any relief against it. (Zebley v. Farmers' Loan & Trust Co., 139 N. Y. 461, 471.) The only relief asked is that the defendants account for moneys which they received from the plaintiff.

It is also said that causes of action have been improperly united, in that a cause, of action is alleged against defendants as trustees of the creditors of the Archer and Pancoast Company, and also a cause of action alleged against them as individuals. There is but one cause of action alleged, and that is to compel defendants to account for money which they received, not from the creditors of the Archer and Pancoast Company, but from the plaintiff. The cause of action alleged does not relate to the fund collected by defendants, but simply to the money paid by the plaintiff. Plaintiff wants the defendants to account for that money, and the complaint is not demurrable because it asks for such relief against the defendants personally and as its trustees. (Donnelly v. Lambert, 62 App. Div. 190.)

The judgment is- right and. should be affirmed, with, costs,, with leave to-the. defendants: to withdraw, their demurrers and to answer ©n payment of.cosis.in.thia court and. in. the court below..

O’Bbieb, P. J., Ibgfraham, Lattgueib. and Houghtob; JJ., concurred'.

Judgment affirmed, with costs*, with-leave, to-defendants- to withdraw demurrers- and ta- answer on. payment of costa- in. this- court and in the court, below-  