(dissenting.) Although several grounds of demurrer were assigned, the one upon which the judgment was based was that the complaint did not state facts sufficient to constitute a cause of action. In determining the sufficiency of the complaint, it is not necessary for us to set it forth in full, and we shall therefore confine ourselves to a statement of such facts alleged therein as we deem necessary to dispose of the questions thus raised on this appeal. The action is brought by the plaintiff, the holder of 11 bonds of the Hew York & Westchester Railway Company, for an accounting from the defendant, the trustee under which the bonds were issued. The complaint alleges the incorporation of the railroad company, the mortgage to *529the defendant, the default of the railroad company in the payment of interest, and the election of the defendant trustee; that the whole principal and interest of the bonds should become due; that the trust company thereupon brought suit to foreclose the mortgage, in which a decree and sale was had, and the property of the railroad company bought in by the trustee for the benefit of all the bondholders under the power contained in the trust deed. It is further alleged that the bonds so now held by the plaintiff were ascertained to be outstanding, and that after the purchase the trust company conveyed the railroad property to the company which was formed in reorganization of the company, in default in which reorganization the holder of these bonds had no part, and in which he declined and declines to come; hnd that demand has been made upon the trust company, but the trust company denies that he has any rights whatever. Upon these facts the plaintiff demands that the defendant acóount for the disposition made of the property after the foreclosure. The respondent contends that the facts stated do not constitute a cause of action, for the following reasons: (1) The plaintiff’s claim is too stale and speculative to engage the attention of a court of equity. (2) If the plaintiff is entitled to any relief, it must be sought in the original foreclosure suit. (3) When the defendant bought in the property, it held the same as trustee under the provisions of the decree. To sustain any action against the trustee personally, it must be alleged and proved that the trustee was guilty of a breach of trust, and departed from the provisions of the decree. (4) The conveyance by the trustee to the new railroad company, if made by order of court, cannot be impeached collaterally, and if made without such order is a breach of trust, and absolutely void. (5) The allegation as to conversion by the defendant is defective, and amounts to nothing.
In regard to the first, while it is true that a court of equity frequently declines to entertain claims which are too stale, and while the complaint itself shows that many of the transactions now sought to be inquired into occurred more than 10 years ago, still we have allegations of want of notice and knowledge on the part of the plaintiff, which, in the absence of a bar by reason of the statute of limitations, (which could only be raised under our practice by answer,) entitle the plaintiff to present the facts to the court, and then have a ruling thereon.
As to the second ground, that the plaintiff’s relief, if any, must be sought in the foreclosure suit, this much need only be said:. It may well be that the plaintiff might have intervened in that suit, and might have obtained the relief which he seeks in this. But that is all foreign to the question presented by the demurrer, which relates to the question whether the allegations are sufficient in law to enable him to maintain this action; and that is the question to be hereinafter considered.
As to the third, we agree with the respondent that, when the defendant bought in the property, it held the same as trustee under the provisions of the decree. It should, however, be n membered that there is no allegation in ‘the complaint that all the property received by the defendant as" trustee in the foreclosure suit was by the terms of the decree or any order of the court turned over to the new or reorganized company. It is true there is an allegation that the property was turned over, but there is an express statement that divers persons, having associated themselves together, formed or attempted to form a corporation; that the defendant, in co-operation with said persons, thereafter conveyed said mortgaged property to said persons for the said company, upon some consideration to the plaintiff unknown; and “that this plaintiff and the holders of said eleven bonds had no notice of the formation of said railroad company, or the said transfer of said property by defendant to said committee or company, nor did the said bondholders or this plaintiff in any wise assent or agree thereto, nor have they or he received any benefit or advantage under said so-called reorganization; but, on the contrary thereof, *530they and he have at all times elected to have their distributive share of the proceeds of said mortgaged property. ” So far, therefore, as the complaint itself gives us any information upon the subject, it would appear that the defendant acquired the title to all the property of the mortgagor railroad, and thereafter held the same as trustee, until, as alleged, it made a disposition thereof by transferring the same to another corporation; but for what consideration or under what arrangement, or whether it was the result of a decree or order of the court, is not made to appear. It seems to us reasonably clear, as an elementary principle, that where nothing else appears, and where the decree in foreclosure gave no specific directions as to the disposition to be made by the trustee of the property, the defendant would hold the same as trustee for all the bondholders, subject, of course, to the terms and conditions fixed by the decree relating to the rights of the bondholders. It was provided therein that upon payment by eacii bond or coupon holder of his proportionate share of the cash payment necessary to meet and defray the expenses of the action, and the other payments directed by the decree to be paid in cash, the purchase so made by the trustee should inure to the benefit of such bond or coupon holder in proportion to his interest. It appears that the plaintiff did not pay his proportion, but he asserts his readiness and willingness to pay. his reasonable share of the expenses of the defendant, which, when taken in connection with the statement of the demand upon the defendant to account, was undoubtedly intended as a statement of willingness to comply with the condition precedent to obtain an interest in the property purchased upon the foreclosure by the trustee. There can be no doubt upon a trial, upon a showing that this property pursuant to a decree or order of the court was transferred to the reorganized company, or upon a showing that the plaintiff was not entitled to any share or interest, therein, that that would be a complete answer to the plaintiff’s right to recover. It seems to us, however, upon the facts stated, that we cannot ignore plaintiff’s right to know what became of the property which was purchased in the interest of the bondholders, except by assuming that the property purchased by the trustee was properly and lawfully disposed of. All these presumptions, however, do not destroy the plaintiff’s right to have a statement from the trustee as to what was done with the property. The complaint does not allege that the property was wrongfully conveyed to another corporation, but there is a statement that the property was converted by the defendant. Without giving any weight to that, being a conclusion unsupported by any facts otherwise .alleged in the complaint, it still appears from the facts alleged that the property was transferred in some way and upon some consideration to the plaintiff unknown. While we must, therefore, concede the respondent’s fourth contention, that the conveyance by the trustee to the new railroad company, if ■made by order of the court, cannot be impeached collaterally, and if made without such order is a breach of trust, and absolutely void, the fact still >remains that, the property having come into the possession of the defendant .as trustee for the plaintiff and the other bondholders, the plaintiff has a right to know in what manner and how the defendant has disposed of the same. Upon such an inquiry, to be entered upon at a trial, after answer the pre- - sumptions as to lawful disposition, and that what has been done was pursuant to the trust reposed in it, will all arise in defendant’s favor. But it . seems to us that the plaintiff has shown sufficient to entitle him to have the defendant, by answer, state just what was done with the property, and pursuant to what authority and upon what terms, to the end that it may be de■.termined what, if any, rights he may. have therein, and as to whether or not the defendant has received or holds by reason of the transfer any money or ¡property to which the plaintiff is entitled. We do not hold that this is a ■ right which may not have been lost by loches or default of plaintiff, these vbeing questions which the trial court must decide. Upon this demurrer, *531therefore, it will be seen that our view is that the abstract question of the power of the trustee to convey in good faith, and for an adequate consideration, is not involved. The proposition before the court is whether, upon facts showing that the trustee has come into the possession of the trust property, he can dispose of the same upon terms and conditions unknown to the cestui que trust, and thereafter refuse or deprive the latter of a right to know just what has been done with the trust fund. We have always regarded it as elementary that a cestui que trust had a right to demand of a trustee an accounting as to the administration of his trust, and in this respect there can be no distinction between the trustee of a railroad company and any other trustees, for the reason that the former are governed by the general rules that govern trustees in the ordinary performance oí theduties of a trust. We are of opinion, therefore, that the judgment should be reversed, with costs to the appellant, to abide the event, and with leave to the defendant to answer without costs.