Upon receiving a bond of indemnity from the defendants, the plaintiff, executor and testamentary trustee, paid to defendant Fanny Cohen $6,000 of the principal of a trust fund, in which her only interest was the income during life. Having made good the fund of which he was trustee by moneys of the estate of which he-is executor, the plaintiff sues the defendants for $6,000; and the question on demurrer is whether, in any aspect of the complaint, he is. entitled to a recovery. ■
As well by the summons as by the title of the cause in the complaint, the plaintiff purports to prosecute an individual and an executorial claim in one and the same action; but that he may not sue in such double capacity is settled by authority. Hall v. Fisher, 20 Barb. 441; Lucas v. Railroad Co., 21 Barb. 245. Assuming, as corn-tended by plaintiff, that it appears by the substance of the amended complaint that he claims only in a single right, and that a representative one, nevertheless he may not maintain the action on the bond,, because it runs to him personally, and not as executor. Moss v. Cohen, 11 Misc. Rep. 184, 32 N. Y. Supp. 1078. Nor, indeed, can there be a recovery upon the bond in any capacity, because given as indemnity against the consequences of an unlawful act, namely, a violation by a trustee of his fiduciary obligations,—an act, the illegality of which is conclusively presumed to be known to the plaintiff. Lee v. Horton, 104 N. Y. 538, 541, 11 N. E. 51. Apparently, the misappropriation of the trust fund by the plaintiff was a criminal offense-Pen. Code, § 528, subd. 2. But, though otherwise, the diversion of the fund in contravention of the terms of the trust, and in breach of" the plaintiff's legal duty, was an act which it was not lawful to induce by a promise of indemnity. Forsyth v. Woods, 11 Wall. 484. *267Upon this point, we are content with the argument of the learned judge in disposing of the case on demurrer to the original complaint. Moss v. Cohen, 11 Misc. Rep. 184, 187, 32 N. Y. Supp. 1078.
The plaintiff insists, however, that independently of the bond, on the facts as recited in the amended complaint, he is entitled to relief, upon the theory that, as executor, he sues to recover for the estate he represents a fund wrongfully diverted into the hands of the defendants. If the action be to restore to the $12,000 trust fund the $6,000 paid to defendants, a twofold defense is obvious: First, that the action may not be maintained by the plaintiff as executor, but only by his successor trustee, in whom is vested the legal title; and, secondly, that the $12,000 trust fund has been replenished, and is now entire and intact. But, contends the plaintiff, the $6,000 which made good the trust fund was taken from the assets of the estate he represents, and the action is to recover from the defendants the $6,-000 so diverted from the general moneys of the estate; to which the sufficient answer is that the defendants have neither received any part of this $6,000 of the general assets, nor is it shown that they were privy to its appropriation to replace the sum they got of the trust fund. Both in Wetmore v. Porter, 92 N. Y. 76, and Lee v. Horton, 104 N. Y. 538, 11 N. E. 51, the defendants held money belonging to the estate. Here the defendants have nothing of the trust fund, because it is intact, nor of the general assets, because of these they never received a dollar. The plaintiff must himself repair the devastavit he has committed upon the estate by appropriating the $6,000 in reinstatement of the trust fund, to which, we repeat, the defendants were not privy; and if, as an individual, he may not reimburse himself by recourse to the defendants, it is because the transaction between him and them, being unlawful, is incapable of supporting a promise of indemnity, either express or implied.
Judgment affirmed, with costs, and without leave to further amend.
BISOHOFF, J., concurs.