The assignment is of the individual property of each member of the firm, and gives a preference to the individual creditors of each out of his individual property. It also assigns the partnership property, preferring the partnership creditors as to that. In our opinion, an action may be brought to set aside such an assignment for the reasons assigned in the complaint, by either an individual or partnership judgment creditor, and that the plaintiff, being a judgment creditor of one member of the firm, individually, and also of the firm, is properly seeking by this action a remedy for the collection of both classes of judgment. (Wait on Fraudulent Conveyances and Creditors’ Bills, § 108, and notes; Bradner v. Holland, 33 Hun, 290.)
Although no case ¡precisely like the present is found, yet these authorities and the eases cited in them contain principles decisive of the present. This conclusion disposes of the demurrer of the assignee, and the first cause of demurrer assigned by the Bank of Batavia.
The second cause of demurrer by the Bank of Batavia is, that the complaint does not state facts sufficient to constitute a cause of action against that bank. The Bank of Batavia is a preferred copartnership creditor for about $18,300, in the aggregate, and the complaint avers that, “the sum of $10,000 or thereabouts was paid and delivered by said defendant, Henry F. Tarbox, as assignee, to *298said defendant the Bank of Batavia, pursuant to such preference expressed in said instrument of assignment, and that the said moneys so paid, are retained and kept by the said Bank of Batavia under the claim and pretense that said instrument of assignment is valid, and that it derives a right thereto under and by virtue thereof.” The complaint also avers, “ That the said Bank of Batavia and the said Henry F. Tarbox, who is and was its vice-president and attorney, fraudulently conspired with said assignors to procure said assignment to be made in the manner and form aforesaid, knowing the same to be fraudulent in the particulars and for the reasons stated and with intent to procure an unjust prefei’ence.”
While, it is abundantly settled that in the ordinary creditors’ action to set aside a fraudulent assignment, in trust, for the benefit of creditors, the cestuis que trust are not necessary parties, yet this is an exception to the general rule prevailing in equitable actions which requires that in suits relating to trust property the cestuis que trust as well as the trustee must be made parties. (Barb. on Parties, 529.) We are cited to no authorities holding that such cestuis que trust are not proper parties if the plaintiff sees fit to bring them in, nor is it necessary for us to express any opinion on that question.
In view of the above quoted allegations in the complaint affecting the Bank of Batavia, and the prayer m the complaint for judgment, “That the defendant, the Bank of Batavia, be adjudged to account for and deliver and pay over to the plaintiff, or to such receiver, the moneys and property it has received, or that have been paid over to it by said assignee, or under said assignment,” we think there is no doubt about the propriety of that bank being made a defendant.
The interlocutory judgment appealed from is affirmed, with costs of appeal; with leave to withdraw the demurrer and to answer on payment of costs of demurrer and of this appeal.
Haigi-it, Bradley and Childs, JJ., concurred.Interlocutory judgment affirmed with costs, with leave to the defendant to withdraw demurrer and answer within twenty days upon payment of costs of the demurrer and of this appeal.