
    Louis Ettlinger, Resp’t, v. The Persian Rug and Carpet Company, and Theodore Schumaker, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 10, 1894.)
    
    1. Trusts—When beneficiary may sue.
    Any emergency, which makes a demand upon the trustee futile or impossible, and leaves the right of the beneficiary without other reasonable means of redress, justifies his appearance as plaintiff in a court of equity to enforce the trust.
    2. Same—Power of court to control.
    Where nothing remains to be done under a trust but to wind it up and distribute the assets, the court itself will take hold of.the trust, dictate and control its performance, at the suit of a beneficiary as well as of the trustee.
    3. Appeal—Judgment absolute.
    Danger of stipulation for judgment absolute.
    
      Francis B. Chedsey, for app’lt; Thomas B. Wiclces, for resp’t.
    
      
       Affirming 49 St. Rep , 408.
    
   Finch, J.

The determination of a single question discussed on the argument will dispose of this appeal. The plaintiff was one of two bondholders protected by a trust mortgage. His complaint showed all the facts necessary to a judgment of foreclosure if the action had been brought by the trusteee, and sought to justify his intervention as bondholder and plaintiff in the action upon the ground that the trustee had left this country, and was somewhere in foreign parts, and had become insane. On the trial the fact of such absence was shown ; that the family of the trustee had also departed to join him abroad, and that inquiries made in natural and reasonable directions was answered by the statement that the trustee had become insane. The special term dismissed the complaint upon the ground that the bondholder could not sue where there was a competent trustee unless the latter refused to act, and where the trustee had become incompetent it was necessary first to procure the appointment of anew trustee. The dismissal of the complaint did not go upon any failure of proof, but assuming the allegations of the complaint to have been established, still held that the. plaintiff could not sue for a foreclosure. An appeal was taken to the general term, which reversed the judgment and ordered a new trial. Instead of going back and presenting his defense so far as he had one, the defendant, who was the remaining bondholder, and for whose interest a foreclosure was as much of a necessity as for that of the plaintiff, adopted the perilous experiment of an appeal to this court, with the required stipulation for judgment absolute. It appeared on the argument that the defendant was injured only at a single point—not by the foreclosure, not by its natural and proper result, not even by the appointment of a temporary receiver, but by a sale of the property claimed to have been collusive, and which vested title in the plaintiff for less than the real value. All that could have been remedied on a new trial. A resale could have been ordered, or the plaintiff compelled to account for the property at its just and fair value, which would have given to the defendant everything to which he was entitled. Seeing the situation, and observing the defendant’s danger, we suggested to his counsel on the argument the prudence of escaping it by a withdrawal of his appeal. He declined the suggestion, and if any hardships results it will not be the fault of the court.

We are satisfied that the plaintiff had the right to maintain the action, and the fact alone justified the reversal of the judgment by the general term. It is conceded that the beneficiary may sue where the trustee refuses, but that is because there is no other remedy, and the right of the bond-holder otherwise would go unredressed. The doctrine does not rest rigidly upon a technical ground, but upon a substantial necessity. In the case of a corporation, a stockholder may sue, not because it refuses, but because those who represent it are the very parties who have committed the wrong. Brincherhoff v. Bostwick, 88 N. Y. 52. In that case we said that a demand upon the corporation to sue would be “futile” :and so was “unnecessary,” and since the action could not be “effectually prosecuted in that form,” the shareholders might sue. What occurred in the present case was tantamount to and equivalent to a refusal by a trustee. He had gone beyond the jurisdiction ; the whole apprehended mischief would be consummated before he could be reached; and if reached there was sufficient reason to believe that he was incompetent. But the special term say that in such event a new trustee should have been appointed. That simply reproduces the same difficulty in another form, for a court would hardly remove a trustee without notice to him and giving him an opportunity to be heard. And why should a new appointment be made when any one of the bondholders can equally do the duty of pursuing the foreclosure ? The court, in such an action, takes hold of the trust, dictates and controls its performance, distributes the assets as it deems just, and it is not vitally important which of the two possible plaintiffs set the court in motion. The bondholders are the real parties in interest; it is their right which is to be redressed, and their loss which is to be prevented; and any emergency which makes a demand upon the trustee futile or impossible, and leaves the right of the bondholder without other reasonable means of redress should justify his appearance as plaintiff in a court of equity for the purpose of a foreclosure.

It is unnecessary to consider or discuss other questions, which were numerous. What we have said requires us to affirm the order of the general term and award judgment absolute against the defendant upon his stipulation, with costs.

All concur.  