Moltke-Huitfeldt v. Garner & Co.

Ingraham, P. j.

(dissenting):

The controversy .that is submitted hereis between the plaintiff and the estate of William T. Garner, acting| through Gamer & Co., a corporation, who had been appointed as trustee to carry out the trust provided for in the pill of the testator; and the question presented must necessarily depend upon whether the estate is liable upon the note givén by the trustee to the plaintiff. The question as to whethef the corporation individually is liable, or whether it could 'interpose the defense of usury, is not presented. Nor is the; question presented as to whether the trustee on an accounting ¡would be allowed the amount of this note if it paid the amount due to the plaintiff. It seems: to me that the sole questioh that we have to determine is, whether the plaintiff could maintain an action against the defendant as trustee and obtain a judgment which would bind the trust estate. The defendant as trustee borrowed of the plaintiff the sum of $259,000. The note representing this loan was payable on demand. The plaintiff was to have five and a half per cent interest, and in addition to that such sum as would represent the rise, if any, in. the price of certain shares of stock which the plaintiff had purchased, and *773which he was carrying on a margin of twenty per cent, occurring during the interval between the date of the loan and the date of payment thereof, together with the amount of any dividends on the said stocks between said, dates, and the cost to the plaintiff of making a sale of said shares of stock. The loan was made on the 25th of October, 1909, and on the thirty-first day of. October the parties agreed as to the amount that the defendant should pay as additional interest on the loan, fixing that amount at $61,862.50, and for that the note in controversy was given. This note was dated November 1, 1909, and was payable on demand. The plaintiff, therefore, on November second, could have demanded payment of these two notes, and thus received the sum of $61,862.50 .and five and a half per cent interest for a loan of $259,000 for a period from October 25, 1909, to November 2, 1909. As a matter of fact the note was not paid for some time after, but that, it seems to me, does not affect the proposition. I do not think that this transaction represented any claim that could be enforced against the estate of which the defendant is trustee, and, if any liability existed, it was against the defendant individually, and not as trustee.

I think, therefore, there should be judgment for the defendant.

Judgment ordered for plaintiff as directed in opinion, with costs. Order to be settled on notice. *