Wherefore the plaintiff charges that said assignment is fraudulent and void, and made with intent to delay and hinder creditors,1 and he prays the judgment of the court that the said assignment may be declared fraudulent and void, and be set aside, and that a receiver be appointed, with the usual power, to take into possession the said personal property, and receive the rents, issues and profits of the said real estate, and be directed to apply so much of said rents, issues and profits, and of the proceeds of said personal property, as may be necessary to the payment and satisfaction of the plaintiff's judgment, and lawful interest thereon, with the costs of these proceedings; and, in the mean time, that the defendants, and each of them, may be restrained from collecting or receiving said rents and profits, or selling, transferring, assigning, or in any way disposing of any debts or demands, goods, chattels, things in action, real or personal property, or effects of said defendant B., in the hands of or under the control or direction of either of said defendants, whether in their own names or hands, or in the hands or names of any other person, for either of said defendants; or for such other or further relief as to the court shall seem just, with costs of this action. 1 This allegation is unnecessary, and, in strictness, improper, as being merely the statement of a conclusion of law. I have, however, retained it as stated in the complaint as originally prepared for use. (No. 36.) By a creditor, on behalf of himself and all other creditors, under a deed of trust or assignment against an assignee, also a creditor, charging him with neglect of duty and with receiving moneys, and applying same to his own use. Praying for an account and a division of the moneys received by the assignee, and for the appointment of a new trustee in his place. Title of the Cause. 1 The above named plaintiffs, on behalf of themselves and all other creditors of the defendant, J. S. P., who shall come in and contribute to the expenses of this action,1 complain of the above named defendant, and allege the following facts constituting their cause of action: That, on or about the -day of one B. D., being in embarrassed circumstances and unable to pay his debts, and being desirous of applying his property and effects to the payment thereof, so far as the same would go, in a just and equitable manner, and being indebted to the plaintiffs as well as the defendant, and other credi 1 A creditor, seeking to set aside an assignment, need not make all the other creditors parties; though it is otherwise, where the creditor seeks to establish, and carry out the assignment. (Bank of British North America v. Suydam, 6 How., 379; see Pleadings, 156, 172. ) All persons claiming an interest in a fund, are necessary parties to an action for an account and distribution of it. In such cases, however, the action may be brought as above, in the name of one or more, for the benefit of themselves and all others. So, in other cases, where the question is one of a common interest or the parties are numerous. See remarks upon the provisions of the Code, and the practice in such cases. (Pleadings, 123—127.) tors mentioned in the assignment hereinafter referred to, and in the several sums therein set forth, executed to the said defendant an assignment of all his real and personal property and effects, in trust, to pay, first, certain preferred creditors mentioned in said assignment (among whom are said plaintiffs and said defendant); and, secondly, to pay all the rest and residue of his just debts and liabilities, a copy of which assignment is hereto annexed and forms part of this complaint. That said defendant accepted the said trust, and entered upon the execution thereof, and entered upon said real estate, and took into his possession the said personal property and effects, and soon after sold the whole or the greater portion of said personal property at public sale, and realized therefrom, as the plaintiffs are informed and believe, the sum of $5,000 and upwards. That, as plaintiffs are also informed and believe, the said defendant also collected various accounts and debts, due and owing to said B. D., but of what amount the plaintiffs are not informed and cannot accurately state. That said defendant is still collecting and receiving considerable sums of money, on account of the estate of said B. D., under said assignment. That, as plaintiffs are informed and believe, the said defendant, in violation of said trust, and disregarding his duties in respect thereto, has applied the whole of the moneys so collected and received by him to his own private use and advantage, and has invested the same in his ordinary business, that is to say, in the business of buying and selling stocks; and the plaintiffs, on information and belief, allege that the defendant has recently lost large sums of money in said business, and that his credit has become thereby considerably impaired, and that said business is of a hazardous and precarious nature. That the plaintiffs have, on several occasions since the sale of said personal property, called on said defendant, and, on behalf of themselves and the other preferred creditors under said assignment, have requested him to make a dividend of the moneys, so received by him, among said preferred creditors, pro rata, pursuant to the terms of said assignment; but that said defendant refused so to do, and hitherto has refused to make any dividend whatever, or pay any sums on account of the demands of said preferred creditors, but continues to use such moneys for his own private use, benefit and advantage. Wherefore the plaintiff's demand judgment, that the defendant account with the plaintiffs, and all the other creditors of said B. D., provided for in said assignment, who shall come in and contribute to the expenses of this action, for all sums of money received by him from time to time, by virtue of said assignment; and that said defendant may be adjudged to pay the plaintiffs and the rest of the creditors mentioned in said assignment such dividend, in the proportion to which they are respectively entitled under said assignment, an equal dividend, in proportion to their respective debts, of all and every the sums of money which he has received, or might, but for his neglect, have received or collected, by virtue of said assignment. And that said defendant may be removed from being trustee, under said assignment, and that some other person may be appointed trustee, under the direction of the court, or for such other, &c., [as in No. 1.] 1 If the amount received by the assignee is more than the amount of the preferred claims, the demand for a dividend should be on behalf of all the creditors, pursuant to the terms of the assignment. 23 (No. 37.) By assignee of preferred creditor under an assignment, to recover of the assignee in trust his pro rata share of trust funds, alleging that the assignee in trust has collected a sufficient amount out of the trust property to pay all the preferred creditors, and that all have been paid, except the plaintiff's assignor. SUPREME COURT-ALBANY COUNTY. Edward Van Ness Charles M. Tallman. The plaintiff, in this, his complaint, respectfully shows to this court, that on the 11th day of September, 1851, John L. Van Ness, then and now of the city of Albany, executed and delivered a deed of assignment of all his property, of every kind and nature, to Charles M. Tallman, the defendant, and Cornelia Van Ness, then of the city of Albany, State of New-York, but now residing in the city of Columbus, State of Ohio, in trust and not otherwise, to sell and dispose of the same for cash, either at public or private sale, and out of the proceeds arising from such sale to pay: First. The necessary costs and expenses of executing the trust; and Second. To pay Charles M. Tallman, Cornelia Van Ness, &c., &c., [setting forth the assignment]. That the said defendant accepted the said trust, and entered upon the execution thereof, and took into his possession the property and effects conveyed by said assignment above mentioned, or intended so to be, and used and disposed of the same. |