Husted v. Thomson
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, David Thomson, as trustee of the estate of Benjamin Lord, deceased, from a judgment of the Supreme Court in favor of the plaintiff, enteréd in the office of the clerk of the county of New York on the 25th day of January, 1896, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 6th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.
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Appeal by the defendant, David Thomson, as trustee of the estate of Benjamin Lord, deceased, from a judgment of the Supreme Court in favor of the plaintiff, enteréd in the office of the clerk of the county of New York on the 25th day of January, 1896, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 6th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover the amount of plaintiff’s interest in the estate of Benjamin Lord. The testator died July…
1Opinion of the Court
Williams, J.:
This is an action at law, and we are clearly of the opinion it cannot be maintained upon, the facts appealing in the record. The general rule, well established, is, that “ the remedy of beneficiaries of a trust, against a trustee where the trust is open- and continuing and the accounts of the trustee have not been settled and adjusted and a balance ascertained, is in an action for an accounting in equity; and that an action at law either for money had and received,, or in any other form, will not lie in the first instanced (Van Camp v. Searle, 147 N. Y. 150-161; Husted v.…
2Cases cited3 opinions
- Van Camp v. . SearleNew York Court of Appeals · 1895
- Power v. HathawayNew York Supreme Court · 1864
- Husted v. CruikshankNew York Supreme Court · 1891
3Cited by4 opinions
- Deering v. PierceAppellate Division of the Supreme Court of the State of New York · 1912
- Reade v. Continental Trust Co.New York Supreme Court · 1899
- Bissel v. Continental Trust Co.Appellate Terms of the Supreme Court of New York · 1899
- Manktelow v. NevlezerNew York Supreme Court · 1951