
    Edmund Batchis, Respondent, v. George Leask and Others, as Trustees under the Last Will and Testament of Hudson Hoagland, Deceased, Appellants.
    First Department,
    March 22, 1912.
    Trust — enforcement of trust—action by assignee of beneficiary — complaint —demurrer.
    A suit to enforce a trust can only be brought by a beneficiary, and it must be in equity, unless there has been an accounting and promise to pay, or the equivalent thereof, when an action at law may be brought for the ascertained sum. In the latter case the action may be brought by an assignee of the claim.
    A complaint, in an action by an assignee of a beneficiary against his executors and trustees to enforce payment of the income from a trust fund, which alleges that on a certain date the defendants “made a further division of the income ” in their hands and distributed the same to the Various cestuis que trust entitled thereto, except that they unlawfully Withheld from Hoagland the sum of $208, is demurrable, because it fails to state that there had been an accounting and promise to pay, or the equivalent thereof, or that the trustees had ascertained and established that on that date the sum of $208 was due to Hoagland.
    Appeal by the defendants, George Leask and others, as trustees, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of December, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrer to the complaint.
    
      J. Hampden Dougherty, for the appellants.
    
      Arthur G. Stiles of counsel [Henry W. Baird, attorney], for the respondent.
   Clarke, J.:

The plaintiff is the assignee of a beneficiary under the will of Hudson Hoagland, and the defendants are the executors and trustees.

The complaint alleges that the 17th clause of the will gave and bequeathed to the executors $75,000 intrust, to pay over the income of $25,000 thereof to Charles E. Hoagland during his life, and, upon his death, leaving a child or children surviving him, to pay over the principal of said sum to said child or children; that, according to the, terms of said will, other sums of moneys were to he paid over to the defendants to be held in trust for other beneficiaries; that such trustees still hold securities to the amount of $500,000 in trust for said Charles F. Hoagland and other cestuis que trust under said will; that Charles F. Hoagland is still alive; that on and prior to the 7th day of April, 1908, the defendants herein as such trustees received the income of said trust funds as the same became due and payable and distributed the same to those$entitled thereto; “That on the 7th day of October, 1908, the defendants herein, as such trustees, made a further division of the income then in their hands of said trust funds, and distributed the same to the various cestuis que trust entitled thereto, except that said defendants unlawfully withheld from said Charles F. Hoagland the sum of $208, being part of that portion of the income of said trust funds that should then have been distributed to the said Charles F. Hoagland. And these defendants still unlawfully refuse to pay over to the said Charles F. Hoagland, or his assigns, said sum of $208, although the'payment thereof has been duly demanded. ” The complaint makes similar allegations as to five other semi-annual dates, and proceeds: “That on or about the 4th day of May, 1911, and after all of said sums of money hereinbefore stated had become due and owing, and after the cause of action herein alleged arose, and prior to the commencement of this action, said Charles F. Hoagland, for good and valuable consideration, duly assigned to the plaintiff herein all claims that he had against the defendants herein by reason of the claims and cause of action herein set forth, and that the plaintiff is still the lawful owner and holder of said claims and of said cause of action; ” wherefore he asked judgment for $1,248.

The defendants demurred, first, that there is a defect of parties plaintiff in the omission of Charles F. Hoagland, who alone has the right to enforce the performance of the trust-alleged in the complaint; second, that there is defect of parties defendant in the omission of Charles F. Hoagland, the person entitled to the money demanded by the plaintiff, which is the income of a trust of personal property, and which by the terms of the trust defendants are directed to apply to the use of said Hoagland; third, that the complaint did not state facts sufficient to constitute a cause of action. The court overruled the demurrer on all three grounds without opinion.

An action to enforce a trust can only be brought by a beneficiary, and it must be in equity. But if there has been an accounting and promise to pay, or the equivalent thereof, an action at law may be brought for the ascertained sum; and if an action at law could be so brought the claim could be assigned and the action brought by the assignee.

The question is whether the complaint sufficiently states the ascertainment of a sum due and promise to pay, or the equivalent thereof. The language of the 8th clause of the complaint, •which is typical of all the items constituting the cause of action, says that on a certain date the defendants made a further division of the income in their hands and distributed the same to the various cestuis que trust entitled thereto, except that they unlawfully withheld from Hoagland the sum of $208, being part of that portion of the income that should then have been distributed to him and unlawfully refuse to pay over to him or his assigns said sum though demanded.

Even exercising the utmost liberality, that clause cannot be interpreted as the equivalent of the statement that there had been an accounting or that the trustees had ascertained and established that on that date the sum of $208 was due to Hoagland.

The interlocutory judgment appealed from should be reversed and the demurrer sustained, with costs and disbursements to the appellants, with leave to respondent on payment thereof to serve an amended complaint.

Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to' plaintiff to amend on payment of costs.  