Cohen v. Wagar
Appellate Division of the Supreme Court of the State of New York
Appeal by tbe defendant, Mortimer H. Wagar, as president of the Consolidated Stock and Petroleum Exchange of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of April, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.
1Opinion of the Court
O’Brien, J.:
The only question to be determined is whether it was necessary for plaintiff, suing as trustee for money had and received for usé of the estate, to allege and prove non-payment to Lee or his assignee.
The complaint alleges that the moneys in question were collected by the association'and received for the use of the estate and belonged to the estate “and now belong to plaintiff as trustee thereof.and that the plaintiff has demanded payrnent of the defendant and no part of the sum “has been paid or turned over to the plaintiff.”- If the association properly paid the bankrupt or the…
2Cases cited2 opinions
- Lent v. New York & Massachusetts Railway Co.New York Court of Appeals · 1892
- Witherhead v. AllenNew York Court of Appeals · 1867