The plaintiff in this case, in 1882, was the executor and trustee under the will of Cornelius Van Buren, deceased, and as such held as part of the assets of that estate two town bonds for $500 each. These bonds he deposited with the defendant bank, as he claims, for safe keeping. In 1895 he demanded the possession of such *81bonds from the bank, which was refused, and he brought this action to recover for the same. In the title of his summons and complaint he appears as plaintiff, without setting forth his representative character, but in the body of the complaint he avers his representative character and that the bonds belonged to the estate of which he was executor. The defendant, in its answer, admits its incorporation, and that the plaintiff has been duly appointed and qualified as executor as alleged in the 2d paragraph of his complaint, and denies all other allegations. It further sets up that after the year 1882 the two bonds were pledged by the plaintiff with it as collateral security for his debt of §1,300; that such indebtedness was evidenced by two promissory notes held by the bank, which were renewed, from time to time, until April, 1895, when judgment was obtained thereon in its favor against plaintiff, and execution issued and returned unsatisfied, and that the defendant was then in the lawful possession of such bonds. It also averred that, at the time of the commencement of this action, plaintiff did not have any right, title or interest in the bonds so held by it.
On the trial a single question was submitted to the jury, as to whether the bonds were pledged to the bank as collateral security for the payment of the two notes, and did the bank by reason thereof and believing that the bonds were the individual property of the plaintiff, in good faith extend the time of payment of the notes ? To that question the jury answered no. And thereupon judgment was rendered in favor of plaintiff for the amount of the bonds, with interest thereon and costs. From that judgment and an order denying a new trial the defendant appeals.
It appeared upon the trial that on January 28, 1895, the plaintiff petitioned the surrogate to be allowed to resign his trust as such executor, on the ground of his advanced age and impaired eyesight, and to that end that his accounts he judicially settled, his letters revoked and a successor appointed. Under that petition a citation was duly issued and such proceedings were had that a decree was entered judicially settling his accounts and charging him with a balance of $2,153.83, found due from him to the estate, and letters of administration with the will annexed were issued to Van B. Pruyn as his successor.
*82• Upon this appeal it is claimed by the appellant that, even though the plaintiff deposited the bonds with the bank for safe keeping merely, yet he cannot recover for them in this action, because his right to the possession of the same has passed to his successor, and also because he cannot maintain this action in his individual capacity.
N either one of these defenses is tendered by the answer; but conceding that upon the evidence they may properly be considered, yet, in my opinion, neither of them can be sustained.
The decree entered upon the plaintiff’s petition for leave to resign charges him with a balance of $2,153.83. It appears from his account filed in that proceeding that the only assets in his hands were certain interest-bearing securities, which were held by him under a prior order of the surrogate, among which were the two bonds in question. And such balance of $2,153.83 is the full amount of such securities less certain credits allowed him against the same. The decree nowhere provides that such securities be delivered over to his successor, as it could have done under section 2603 of the Code of Civil Procedure, but it charges the full amount thereof against this plaintiff and requires him to pay the same over to his successor. It further provides that “ when he shall have paid over the sum of $2,153.83, found due from him as aforesaid, to Van B. Pruyn, who is hereby appointed the successor of the said Martin Van Burén, as directed by the surrogate, it is ordered and adjudged that the resignation of the said Martin Van Burén, as executor of the last will and testament of Cornelius Van Burén, deceased, be and the same is accepted, and that he be discharged of and from all liability and duty on account thereof, and his letters revoked accordingly.”
This decree does not deprive plaintiff of his right to the possession of such bonds. It will not be claimed that Van B. Pruyn was entitled to the sum of $2,153.83 from the plaintiff, and also to the securities of which that sum is made up.
Concede that the bonds will be considered assets of the estate until plaintiff has paid the amount decreed against him, yet his right to possess them and to realize from them in order to pay is not taken from him by such a decree. The title and the right to possess them has not by that decree passed from him to his successor. As against *83this defendant, who was a mere depositary, plaintiff has still the right to possess and demand the same. Were it otherwise — if the successor alone has the title and is entitled to that possession, to the exclusion of the plaintiff — then in equity the decree that plaintiff pay the money for the same must be deemed satisfied by the application of the securities thereto, and the successor is left to recover from the depositary as best he may.
It is also to be noticed that by this decree the plaintiff’s resignation is not accepted, nor are his letters revoked, until he has paid the sum charged against him. Although a successor is named, this plaintiff’s authority is not revoked. By the decree, itself, it is preserved until payment is made. It seems very clear to me that he still has the right, as against his depositary, to the possession of these bonds, and has never been deprived of authority to enforce that right.
It is said, however, that such right belongs to him in his representative capacity only, and that hence he cannot maintain this action in his individual name.
It is a right that accrued to plaintiff subsequent to the death of his testator, and rests entirely upon a transaction between himself and the defendant, viz., upon the implied promise to return to him the bonds upon demand. Such a. right may be enforced in his individual, as well as in his representative, capacity. (Buckland v. Gallup, 105 N. Y. 453; Bingham v. Marine Nat. Bark, 112 id. 661.)
But in the complaint it appears just what his claim is and in just what capacity he sues, and for these reasons this latter objection is not well taken.
In order to defeat this plaintiff’s demand for these bonds the defendant, having failed in its claim that it held them as a valid pledge for the plaintiff’s debt, was at least obliged to show that the plaintiff’s right to possession had departed from him and that another party, having a better right, made claim to the same. This it failed to do, and, hence, I conclude that the motion for a nonsuit was properly denied.
The exceptions taken upon the trial do not present any reversible error, and the weight of evidence is not so strong against the verdict as to warrant us in disturbing it.
The judgment must be affirmed, with costs.
*84All concurred, except Kellogg, J., dissenting in an opinion concurred in by ELebbick, J.