The main question before the court is whether the complaint herein states a good cause of action. In my opinion the complaint adequately sets forth a very meritorious cause of action in equity. It is also contended that the action is premature.
The complaint alleges a breach of the trust agreement by defendants; that they have favored certain creditors and have paid them in full, although there was apparently no reason for making such payments; that there are not sufficient funds to warrant payment *117in full; that they have permitted a favored creditor to collect and retain sufficient funds to pay in full the amount claimed to be due, although an accounting will show that no such payment should have been made. It is also alleged that other creditors have not received any payments on account or otherwise.
The complaint also alleges that the trustees have collected certain moneys, at least a part of which are now due and owing to the plaintiffs and should be paid; that the trustees have refused to collect from debtors who have been favored by the trustees because of the fact that they are interested financially; that several years have passed without any attempt to make such collections, and there is no likelihood of said debtors being compelled to pay in the near future, or the amount due collected; that there are debtors who have neither paid nor been sued for the money they owe. It is also set forth that the trustees have neglected and continue to neglect their duties and have failed and refused to carry out the terms of the trust agreement and to pay the plaintiffs money which has concededly been due for some time past. The plaintiffs have, therefore, been compelled to resort to the only remedy available, a suit in equity for an accounting.
The only charge against the plaintiffs is that they contested their liability. They had a right to do so. That liability has been settled. It is far fetched to now say they may never sue to recover money concededly due them and that the trustees may refuse to collect and account for a large sum now due from a debtor in whom the trustees are interested and from whom it is alleged they have not attempted to collect a debt concededly due.
If the prevailing opinion be correct, the plaintiffs have no means of obtaining the proportionate share of the money now due them and already in part collected by the trustees, and in their possession. They are also left without means to make the trustees collect or to attempt to collect the amount due from their principals. That is the whole story in a few words. The defendants having failed to carry out the agreement in several particulars the plaintiffs must have a remedy.
The order dismissing the complaint should be reversed, with twenty dollars costs and disbursements, and the motion denied.
Order affirmed, with twenty dollars costs and disbursements.