
    Mary Frances Welch, Appellant, v. Grahams Polley, Individually and as Surviving Trustee of Mary Frances Welch, Defendant, Impleaded with Miles M. O’Brien, as Trustee in Bankruptcy of Grahams Polley, Respondent.
    
      Beal property fraudulently purchased with trust funds and conveyed by the trustee — money received by the trustee in bankruptcy of such trustee on the compromise of a creditor’s suit brought for its recovery — the money is not-recoverable by 'the beneficially of the trust fund.
    
    Grahams Polley, who held a quantity of personal property in trust for Mary Frances Welch, used a portion of the trust fund in the purchase of real estate, 1 " the title to which he took in his own name. Thereafter he fraudulently con- > veyed such real estate to one Lillian Cavanagh. He was subsequently = adjudged a bankrupt, and the trustee in bankruptcy commenced an action a’gainst the bankrupt and the said Lillian Cavanagh to set aside the transfer of real'estate to Cavanagh, alleging that the transfer was fraudulent as to credit-1 ors. The action resulted in a judgment in favor of the trustee..' The defend- < ants appealed from the judgment, but before the appeal was argued the matter : . was, with'the permission of the bankruptcy court, compromised by the payment to- the trustee of a sum of money.
    
      Held, that such money was not impressed with a trust in favor of Mrs. Welch, as it had been recovered upon the theory that the real estate belonged to the bankrupt and not to Mrs. Welch;
    That any right which Mrs. Welch had , against Cavanagh was not affected by the compromise of the claim asserted by the receiver.
    . Appeal by the plaintiff, Hary Frances Welch, from a judgment of the Supreme Court in favor of the defendant Hiles. H. O’Brien, as trustee in bankruptcy of Grahams Polley, entered in the office of the clerk of the county of Kings on the 19 th day «of March, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiffs complaint upon the merits as to the said defendant trustee.
    
      Raphael J. Moses, for the appellant.
    
      Moses Weinman [Louis Malthaner with him on the brief], for the respondent.
   Goodrich, P. J. :

The plaintiff- appeals from a judgment dismissing her complaint on the merits in an action brought by her to impress a trust upon funds in the, hands of the defendant O’Brien, as trustee in bankruptcy of Grahams Polley.

In October, 1897, the plaintiff, Mrs. Welch, transferred to Grahams Polley and David Polley all her personal property in trust to invest the same and pay the income thereof to her during her lifetime, and after her decease to pay the principal to such persons as she should appoint by her will, and in default of such appointment,', to her next of kin. Under this trust the trustees received $40,000. prior to the death of David Polley which occurred in January, 1896, whereby Grahams Polley, as survivor, came into possession of the trust fund, and with a portion of it purchased and received a deed in his own name of real estate which he thereafter fraudulently conveyed to one Lillian Cavanagh. In December, 1900, Grahams Polley filed a voluntary petition in bankruptcy in the office of the clerk of the District Court of the United States alleging his insolvency. He was adjudicated a bankrupt, and the defendant O’Brien was appointed as trustee of the bankrupt’s estate. O’Brien, as such trustee, commenced an action against Polley and Cavanagh to set aside the transfer of the real estate to Cavanagh, alleging that the1 transfer was fraudulently made by the bankrupt without considera-. tion and with intent to hinder and delay the creditors of Polley. The action was tried and resulted in a judgment in favor of the trustee whereupon the defendants appealed, but before argument the matter was compromised by permission of the bankruptcy court, for the sum of $18,963.48, which is still in the hands of the trustee.,' In the present action Mrs. Welch claims that this, sum belongs to; her and is subject to the terms of her trust agreement and is impressed with a trust in her favor.

The court held that the money in the hands of O’Brien represented an amount paid in settlement of ■ the claim asserted by the trustee in bankruptcy and did not represent any moneys belonging to Mrs. Welch’s trust; that the money was received by O’Brien as belonging to the bankrupt, and that the plaintiff could not collaterally attack the. judgment and take from O’Brien, the trustee, the moneys received by him for claims asserted against property adjudged to belong to the bankrupt’s estate and received in settlement of the judgment.

In the opinion, the court, Mr. Justice Marean, stated that as Polley used Mrs. Welch’s trust funds in the purchase of the real estate which he presented to Cavanagh, her title to the real estate was impressed with a trust in favor of Mrs. Welch; that O’Brien as trustee in bankruptcy became vested with all the' rights of the bankrupt and of his creditors as such; that his release to Cavanagh did not discharge the rights of Mrs. Welch against the real estate, and that she could not enforce any claim against the money in the hands of O’Brien as trustee.

It is manifest that the money received by O’Brien was recovered under an adjudication that the real estate belonged to Polley and not to Mrs. W elch; that it was his property and not'hers which was transferred to Cavanagh. There was no claim in the trustee’s action that the trustee was seeking to recover the real estate because it had been transferred to Cavanagh in fraud of the rights of Mrs. Welch, but because it was transferred in fraud of the rights of the creditors of the bankrupt. The trustee made no conveyance of the real éstate to Cavanagh; he simply released her from the judgment which he had obtained against her. If she holds the real estate impressed with Mrs. Welch’s trust, the latter has her remedy against her and the real estate, for no such right was or could be discharged by the trustee in the settlement with Cavanagh,

In Stephens v. Board of Education (79 N. Y. 183), Grill, while ia member of the board of education, had converted to his own use a sum of money belonging to the board. He obtained money from Stephens on a forged mortgage and deposited the same in his hank account, against which he drew a check and paid the board. The court held that Stephens could not recover the money from the board, but that his cause of action was against Gill.

The principle was stated in Patrick v. Metcalf (37 N. Y. 332), and followed in Butterworth v. Gould (41 id. 450), that when two claimants for the same service apply for payment to the party bound to pay, and one of them is recognized as having a just claim and is paid to the exclusion of the other, who is in fact the one entitled, the party thus excluded derives no title to the money paid as against the party receiving payment, and that money thus paid is not an appropriation for the payment of the claim of the competitor and cannot be considered as held in trust for such purpose, and that the right of such competitor to call upon his debtor for payment still remains wholly unaffected. To the same effect is the decision in Hathaway v. Town of Homer (54 N, Y. 655).

Under these- authorities the plaintiff has npt lost any right of action which she may have had against Oavanagh or the real estate in question by reason of the compromise and. settlement of O’Brien’s claim against Oavanagh which was of an altogether different nature.

We are not called upon to consider or decide any question as to the right of Mrs. Welch to prove her claim in the bankruptcy proceedings as a secured creditor, or to share with the other creditors in the estate of the bankrupt in the hands of the trustee in bankruptcy.

The judgment must be affirmed, with costs.

Bartlett, Woodward, Hirsohberg and Hooker, J"J., concurred.

Judgment affirmed, with costs.  