
    Robert Schlimbach, Respondent, v. Donald McLean, Appellant.
    
      A trustee cannot insist upon the cestui que trust giving a general release — what constitutes a demand.
    
    A trustee cannot, as a condition precedent to turning over the trust fund to his cestui que trust, insist upon the latter executing a general release to him.
    Evidence that the trustee agreed to turn over the trust fund to the cestui que trust on a certain day, and that the cestui que trust visited the trustee for that purpose on the day appointed, but that the latter refused to turo over the fund to him, is sufficient to support a finding that there was a demand.
    Appeal by the defendant, Donald McLean, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of October, 1902, upon the report of a referee.
    
      Albert Ritchie, for the appellant.
    
      Lucius L. Gilbert, for the respondent.
   Jenks, J.:

The defendant attacks this judgment on two grounds: First> that the recovery was not within the pleadings, and, second, that no demand was made upon him. The plaintiff, in 1893 and 1894, intrusted certain moneys to the defendant and authorized him to collect other moneys for him. The referee finds that $2,000, a part of the money received by the defendant, had been invested by him for the benefit of the plaintiff. The defendant testified that he lent this money by buying a half interest in a $4,000 bond and mortgage, and that he took an assignment of the bond and mortgage to himself as trustee and made a declaration of trust. The plaintiff testifies that he never authorized any loan in such fashion; that he never saw the bond and mortgage or the assignment, and that he supposed that the transaction was a direct loan on a bond and mortgage. It is not disputed that about $1,400 had been hitherto paid off on account of the principal.

The plaintiff complains that during the years 1893 and 1894 he placed in the defendant’s custody and allowed him to collect for him, to be repaid on demand, the aggregate sum of $7,989, alleges a demand, payment of $6,505, and asks judgment for the balance. The criticism of the defendant upon the pleading is founded upon the fact that $2,000 of this sum was invested as. aforesaid, and that inasmuch as the mortgage was not due until 1897 a recovery of any moneys so invested was not within the pleadings. In other words, that a complaint for moneys had and received by the defendant in 1893 and 1894 cannot authorize a recovery for moneys not “ received ” until 1897. But there cannot be any doubt that the plaintiff is suing to recover moneys which the defendant received from him in those years, irrespective of any subsequent investment by the defendant. The pleader does not refer to the time that the defendant was t'o receive the investment made by the defendant, but to the time when the plaintiff intrusted the money to the defendant. There are two features of the pleadings which clarify. The plaintiff’s bill of particulars itemizes the very money from which the defendant testifies he took the funds for this investment, and the answer alleges that the moneys received from the plaintiff or on his account were received on the understanding and agreement that certain portions should be invested. How, the only portion invested is that put out on the bond and mortgage aforesaid. It is to be borne in mind that the money so invested was not placed in file-name of the plaintiff, but was still held by the defendant on his. declaration of trust.

As to the demand, the theory of the defendant is that he held this balance on trust. He testifies that after he credited the plaintiff, on August 19, 1897, with a payment of $800 on the principal of the mortgage, the plaintiff said that there would be no further business between them except to get the $600 on October first* when he should come for it; that he would like to get all the papera of his that were in the defendant’s possession, and that thereupon he took and receipted for all sorts of papers as a final winding up and settlement of everything except the payment due him on October first of the $600, with interest from April twenty-seventh. The defendant further testifies that on October fourth the plaintiff called, when the defendant made up a statement of the amount due* and offered to him the check, as I have told. If it was fully understood by the defendant that the balance was to be paid by him at a. time when the plaintiff called, and when the plaintiff did call he prepared for the payment, why was a demand necessary before, the suit was brought ? “ The legitimate object of a demand is to-enable the party to perform his contract or discharge his liability* agreeably to the nature of it, without a suit at law.” (Heard v. Lodge, 20 Pick. 53, 61.) At the appointed time the plaintiff came to receive his due, and the defendant, although admitting by his act. that he owed the debt, nevertheless refused to pay it unless the plaintiff then executed a general release. The defendant’s version of the interview does not show that he offered a settlement for the. return of a general release, but that he gave the check, accepted a. receipt, and thereafter called the plaintiff back as he was going out and insisted on the execution of a general release. He had no legal right to exact it. If the debt was due, it was his legal duty to tender the money. He could not even exact a receipt. (Wood v. Hitchcock, 20 Wend. 47; Noyes v. Wyckoff, 114 N. Y. 204, 207; Glasscott v. Day, 5 Esp. 48.) If one cannot demand a receipt —. evidence of payment — a fortiori he cannot demand a formal instrument of discharge. In this case the trustee knew perfectly well that there was to be a settling day, and that the only matter for settlement was a balance due upon this trust mortgage. He prepared to pay, but refused to pay, basing that refusal upon an invalid ground. In Brent v. Maryland (18 Wall. 430) the court held that where the trustee is an actor in a transaction, and has full knowledge of his duties, notice and demand are not required.

But the referee has found that there was a demand. The plaintiff testifies that he repeatedly asked for an accounting of his money and the mortgages, and, as I have said, the defendant admits that the plaintiff told him that he would call on October first for the balance of his money, and did so, and he then held the check ready for the plaintiff. The plaintiff testifies that the defendant finally refused to give him the check unless he signed a general release. I think that the evidence may be held sufficient to sustain the finding of a demand. If a creditor, notifies his debtor that he will appear for payment on a certain day, and the creditor calls upon that day for the sole purpose of receiving his due, and this is known to the debtor, I think that this evidence is sufficient to sustain a finding that there was a demand. Beally, the whole dispute in this case is over the question of costs and interest. The referee has found for the plaintiff in the amount which the defendant was ready to pay, and which the plaintiff was ready to accept. Slight mutual concessions might have avoided the delay and the expense of this litigation.

The judgment should be affirmed, with costs.

Goodrich, P. J., Bartlett, Woodward and Hooker, JJ., concurred.

Judgment affirmed, with costs.  