
    Charles H. Hart, Irene N. Collord and Emma J. Sheridan, Plaintiffs, v. William H. Goadby and Charles T. Kilborne, Defendants.
    (Supreme Court, New York Special Term,
    May, 1911.)
    Joint agreements — On contracts — In general — Joint and several — Implied contracts.
    Limitation of actions: Period of limitation — Suits in equity — Constructive trust: Accrual of cause of action—Constructive trust.
    In an action against bankers, for moneys alleged to have been received by them from a trustee with knowledge or notice of the trust and wrongfully used for purposes of private speculation in stocks for the account of the trustee, but without actual fraud on the part of the bankers, the cause of action arose at the time when the defendants received the assets; and, in the absence of actual fraud, concealment or deception on the part of the defendants, the cause of action did not accrue until those entitled to maintain the action discovered the fraud.
    In such a case, the bankers by the receipt of said moneys become trustees ex maleficio and may avail themselves of the Statute of Limitations as a defense; and the rule that the statute does not begin to run until the trustee repudiates the trust does not apply.
    
      Semille, while it is well established that the right of a remainder-man under a testamentary trust to sue a trustee appointed by will or a person who has in contemplation of law wrongfully assumed the. duties of trustee accrues only when the remainderman becomes entitled to the property, it does not follow that the same rule applies when the action is predicated upon a hostile interference with the trust estate and the trustee would have had a right to bring the action earlier.
    The ten-year provision of the Statute of Limitations applies only to actions of which equity has exclusive jurisdiction; and, where the remedy in equity is merely concurrent with one at law, the statute limiting the time for the commencement of the action at law is also applicable to the equitable remedy.
    In such a case, where the original receipt of the moneys was wrongful and the fund was successively handled by several successive banking firms, all the members of the several firms need not be joined as defendants where plaintiffs waive the tort and sue upon the implied contract of defendants to hold tlie money wrongfully received by them for the benefit of the plaintiffs; but the plaintiffs may elect whom to sue and those who suffer from a recovery against them may seek contribution, if entitled thereto, from the others.
    
      Demubrebs to the first, second and twelfth separate and distinct and partial defenses in the answer on the ground that' each is insufficient in law upon the face thereof.
    Bowers & Sands (W. H. Van Benschoten and Charles H. Edwards, of counsel), in support of demurrers.
    Alexander & Green (Allan McCulloh and Campbell E. Locke, of counsel), in opposition.
   Lehman, J.

The plaintiffs are remaindermen and assignees of the executors of the life beneficiary under a trust created under the will of Joseph B. Hart, who died on the 14th day of December, 1878. The defendants are copartners engaged in business as bankers and brokers under the firm name of W. H. Goadby & Co. The plaintiffs allege in their complaint that between the 28th day of December, 1878, and the 20th day of September, 1907, John Jay Hestell, the trustee appointed and acting under said will, did wrongfully, unlawfully, and in violation of his duty as trustee under the last will and testament of Joseph B. Hart, deceased, and of the trust thereby created, convert, misappropriate, and wrongfully use the money hereinafter mentioned, and for the purposes thereof delivered to the defendants and the defendants did wrongfully and unlawfully receive from the said John Jay Hestell certain moneys and other assets belonging to and being a part of the said estates so held by the said Hestell as trustee under the said last will and testament, and that said sums of money and assets were so delivered by said Hestell and so received by said defendants for the purpose of the business and speculation of said Hestell, personally, of the use and advantage of these defendants, and of the purchase and sale of and speculation in railroad and industrial stocks and bonds and in other investments not permitted by law to trustees, all of which facts were well known to these defendants.”

They further allege that it was at all times known to these defendants that the assets so delivered to and received by these defendants were a part of the assets of the trust estate created by the will of Joseph B. Hart and that these assets were wrongfully and unlawfully used by these defendants and said Hestell in the purchase of and speculation in various industrial and railroad stocks and other securities and properties, all of which were authorized for the investment of trust "funds under the laws'of the State of Hew York, and in the individual purposes, business and speculation of said Hestell and of these defendants, and in the payment and liquidation of claims owed, by the said Hestell in his individual capacity to these defendants, and that, in the said unlawful use, misappropriation and conversion of the said assets and funds, these defendants did unite with and aid and abet the said Hestell, with full knowledge that the said acts were wrongful and unlawful and in violation of the trusts created by said will and of the rights of the beneficiaries thereunder.”

These allegations constitute the gravamen of the complaint against the defendants and upon these allegations the plaintiffs seek an accounting in equity from the defendants of the moneys received by them together with all profits, income and dividends received and earned thereon.

The answer consists of a general denial and a number of separate defenses and the plaintiffs have demurred to the first, second and twelfth separate defenses. The first and second defenses are denominated partial defenses and set up respectively limitations of six years and ten years against the claims relating to moneys received prior to the 29th day of June, 1904, and prior to the 29th day of June, 1900.

It seems to me that the cause of action against the defendants arose at the time that they received the assets. At that time they received moneys to which in equity they were not entitled and from that time an action for money had and received could be maintained against them at law or the injured party could regard them as trustees ex maleficio and bring an action in equity for an accounting. They were trustees, however, not 'by choice but in invitum. The rule that the limitation against actions for an accounting by a trustee does not begin to run until the trustee repudiates the trust d-oes not apply. In the casé of a constructive trust the law will not pi’esume that the trustee is not acting adversely to his trust. See Lammer v. Stoddard, 103 N. Y. 672; Price v. Mulford, 107 id. 303; Mills v. Mills, 115 id. 80; Gilmore v. Ham, 142 id. 1; Finnegan v. McGuffog, 139 App. Div. 899. The plaintiffs in their extraordinarily exhaustive brief fail to cite a single case in this jurisdiction which holds that the Statute of Limitations may not be set up by a constructive trustee. They cite, however, the English case of Soar v. Ashwell, 2 Q. B. Div. (1893) 390, where the court held that there are certain cases of what are strictly speaking constructive trusts, in which the Statute of Limitations cannot be set up as a defense.” An examination of that opinion, however, shows that the rule enunciated by the court applies only to cases where a stranger to the'trust has assumed to act and has acted as a trustee and by his officious acts has rendered himself liable as a trustee de son tort. In such cases there seems to be no doubt that the trustee is estopped from setting up that his acts were in hostility to the trust. To raise such an estoppel there must, however, be shown a voluntary assumption of responsibilities in respect to the trust estate. Putnam v. Lincoln Safe Deposit Co., 191 N. Y. 166, 184, 185. In the case under consideration there was, in my opinion, no recognition of the trust and no voluntary assumption of responsibilities thereunder; on the contrary, the gravamen of the action is that the defendants received the assets of the trust estate for their own benefit and in hostility to the trust estate. Even if) however, the allegations of the complaint are sufficient to sustain a judgment that the defendants have assumed a liability as trustees de son tort, the plaintiffs’ contention that the defense of the Statute of Limitations is, therefore, open to a demurrer cannot be sustained. The question before me is whether the admission of the allegations of the complaint necessarily preclude the establishment of this defense. If the allegations are fairly susceptible of an interpretation that the defendants are merely constructive trustees, then the defense of the Statute of Limitations may be interposed, even though possibly the plaintiffs’ proof at the trial may defeat this defense.

The plaintiffs claim that, even if the defendants have, a right to plead the Statute of Limitations, the case is governed by subdivision 5 of section 382 of the Code, and that the cause of action is not deemed to have accrued until the discovery, by the plaintiff, or the person under whom he claims, of the facts constituting the fraud. The complaint alleges no concealment or deception on the part of the defendants. While susceptible of' the interpretation that the defendants have been guilty of constructive fraud, it proceeds upon no allegations of actual fraud. In the case of Finnegan v. McGuffog, supra, the defendant took a renewal of a lease in her own name though the lease belonged to the trust estate. The court there said (139 App. Div. 900) : “ The complaint does not proceed upon allegations of actual fraud; hence the special limitation contained in subdivision 5 of section 382 of the Code of Civil Procedure has no 'bearing upon the case.” This opinion seems to me to be in line with the settled authority of this State that the special limitation may be interposed only where actual fraud is the gravamen of the complaint and does not apply where the fraud is merely constructive or where the allegations of fraud are incidental to but not the ground of the cause of action. See Carr v. Thompson, 87 N. Y. 160; Price v. Mulford, 107 id. 303; Mills v. Mills, 115 id. 80; Gilmore v. Ham, 142 id. 1; Yeoman v. Townshend, 74 Hun, 625; Chorrmann v. Bachmann, 119 App. Div. 146. The plaintiffs claim, however, that under the recent decision of the Court of Appeals in the case of Lightfoot v. Davis, 198 N. Y. 261, subdivision 5 of section 382 does apply to the facts of this case. The decision of the Court of Appeals was handed down shortly before the decision of the Appellate Division in Finnegan v. McGuffog, but an examination of the briefs on file in the latter case shows that it was not called to the attention of the court and possibly was not considered by it. I do not find, however, that it is any authority upon the question before me. It is true that the complaint in that-action was also for an accounting under a constructive trust; in that case, however, the trust arose upon the conversion of securities by the defendant’s testator himself; and, though the trust was constructive, the fraud was actual and morally reprehensible in the highest degree. Moreover, the court there points out that the testator was guilty of fraud in “ 1st, the original larceny; 2nd, the subsequent conceálment of the stolen property and of its sale and the receipt of its proceeds,” and the decision is expressly placed upon the second fraud (p. 272). The question in that case arose after a trial of the issues and proof of this fraud and the court did not hold that, under the allegations of the complaint, even in that action, a demurrer to a defense setting up the Statute of Limitations would be sustained. So far as the allegations of the complaint are susceptible of interpretation as allegations merely of constructive fraud, the opinion of Mr. Justice Brewer in Hayes v. McIntire, 45 Fed. Rep. 529, would seem applicable. “ In a case in which the defendant is guilty of no moral wrong, has taken no part in any fraud or deceit, will equity seek to deprive him of the protection Avhich the statute of the state casts around his possession, or will it recognize the wisdom of that legal protection and seek to uphold it ? There was a time when statutes of limitation were looked upon with disfavor and when the courts delighted to seize upon any pretext for avoiding their force, but that time has passed, and now it is generally recognized that they are statutes of repose and ought to be upheld. A Avise public policy demands their recognition and forbids their evasion.” The plaintiffs further urge that, since they are only remaindermen of the trust estate, their cause of action accrued only when the life tenant died. The conclusive answer to this contention is that they sue both as remaindermen and as assignees of the life tenant; and, since the defenses are pleaded only as partial defenses, they "are not open to demurrer. ' In regard to the cause of action of the plaintiffs as remaindermen, the question of when the cause of action accrued seems somewhat doubtful. While it is well established that the right of a remainderman under a testamentary trust to sue a trastee appointed by will or a person who has in contemplation of law wrongfully assumed the duties of trustee accrues only when the remainderman becomes entitled to the property (Putnam v. Lincoln Safe Deposit Co., 191 N. Y. 166), it does not follow that the same rule applies when the action is predicated upon a hostile interference with the trust estate and the trustee would have had a right to bring the action earlier. I do not think, however, that I should consider this question. Inasmuch as the complaint sets forth practically two causes of action, the defense is good as a partial defense if it can be raised against either one, and no decision on my part as to whether it would be good against the other would be conclusive upon the trial of the action.

It remains, therefore, only to determine whether the six-year or the ten-year limitation applies. The complaint sets forth a cause of action for moneys had and received. There are concurrent remedies for the wrongs alleged which may be obtained by actions at law or in equity. The equitable remedy of an accounting affords, perhaps, fuller relief; nevertheless the purpose of the accounting is merely to determine the amount for which the defendants may be held liable because of their conversion of plaintiffs’ securities. “ It seems to be settled, however, that the ten-year provision applies only .to actions of which equity has exclusive jurisdiction, and that where the remedy in equity is merely concurrent with one at law the statute limiting the time for the commencement of the action at law is also applicable to the equitable remedy.” Holt v. Hopkins, 63 Misc. Rep. 537, 540, and cases there cited. It follows that the demurrer to the first and second separate defenses must be overruled.

The twelfth separate defense sets forth that there is a defect of parties defendant in that two persons who were copartners with the defendants at certain periods are not made parties to the action. It appears that, during the periods mentioned in’“‘the complaint, there were four successive copartnerships doing business under the firm name of W. H. Goadby & Co.; and, while the defendants were members in all the copartnerships, a third person was joined with them in two of the copartnerships. The defendants claim that these persons should be joined as parties defendant, both because the suit is brought upon a copartnership obligation and is, therefore, upon a joint liability, and because the other' partners would, in any event, be liable for contribution in an action by the defendants against them and should be made parties to the equitable action, in order that all controversies connected with the obligation sued upon may be litigated in one action.

The complaint seeks to hold the defendants liable for the wrongful acts alleged to have been committed by the copartnership of which they were members. The basis of the action is the receipt for their own benefit of moneys belonging to the plaintiffs. Whether or not they individually participated in the conversion of these moneys is immaterial; as members of the firm they are responsible, jointly and severally, as principals, for all acts committed by their agents or partners. The plaintiffs have by their form of action waived the conversion and sue upon an implied contract of the defendants to hold the money wrongfully received by them for the benefit of the plaintiffs. The contract, however, is not a copartnership contract. It is implied not as an inference of fact of intent of the parties, but is implied by law despite the intent of the parties. The liability of the defendants as principals for the wrongful acts of their agents or partners is a joint and several liability, and the contract implied by law by reason of these acts is in my opinion also joint and several. The plaintiffs do not allege that the defendants as copartners have rightfully received their moneys and wrongfully refuse to account for them, as was the case in Isham v. Phelps, 54 N. Y. 673, and in Harris v. Schultz, 40 Barb. 315, but they seek to hold the defendants liable for moneys wrongfully received by themselves or their agents. In the first case, the obligation to account arises upon the breach of a joint obligation; in this case the obligation to account arises upon a breach of the contract implied from their wrong; and this obligation, like the wrong and the contract, is joint and several.

Under the authority of Steele v. Leopold, 135 App. Div. 247; affd., 201 N. Y. 518, it may be that the defendants will be entitled to contribution from their copartners. It does not, however, necessarily follow that, for this reason, the copartners must be made parties defendant. The action is not Strictly equitable, but -the plaintiffs have sought ■ a remedy in equity in a case where the facts also gave them a right-of action at law. The plaintiffs saw fit to bring their action against only certain of the parties against whom they would have a right of action; and, even if these other parties were brought in, their presence would not compel the court to adjudicate the question of a right to contribution or a recovery over as between them and the other defendants. Steele v. Leopold, supra, p. 259. The presence of the other parties would be only for the convenience of the defendants, for the plaintiffs make no claim against them. ■ Possibly the defendants have a right to move that these parties should be ‘brought in so that there may not be two litigations, but the granting of the motion would be within the court’s discretion and their absence constitutes no defense to plaintiffs’ cause of action.

Demurrer to the twelfth defense should be sustained.

Ordered accordingly.  