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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 plaintiffs 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.]

' 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

agt.
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.

That the said Cornelia Van Ness, mentioned as one of the assignees in the deed of assignment above mentioned, did not accept the trust, or receive, or in any way interfere with the property thereby conveyed; but on the contrary thereof always has and still does refuse, neglect and decline so to do.

That at and before the execution and delivery of said assignment, the said John L. Van Ness was indebted to Cornelia Van Ness, then of the city of Albany, and named among the first class creditors above mentioned, on a certain promisory note, dated Albany, April 1st, 1850, whereby, for value received, the said John L. Van Ness promised, in one year from the date thereof, to pay the said Cornelia Van Ness the sum of $500, with interest.

That at and before the execution and delivery of said assignment above mentioned, the said John L. Van Ness was further indebted to the said Cornelia Van Ness, on a certain other promissory note, dated Albany, March 9th, 1850, whereby, for value received, the said John L. Van Ness promised to pay the said Cornelia Van Ness the sum of $297, in one year from the date thereof, with interest.

That at or before the execution and delivery of said assignment, above mentioned, the said John L. Van Ness was further indebted on a certain other promissory note, bearing date Albany, March 12th, 1850, whereby, for value received, the said John L. Van Ness promised to pay the said Cornelia Van Ness, the further sum of $606.93, with interest.

That by an instrument bearing date the 17th day of November, 1854, and executed and delivered in due form of law, the same identical notes, above mentioned, were, for a sufficient consideration, duly assigned and transferred to this plaintiff by the said Cornelia Van Ness.

That the said defendant, as said assignee, on the said eleventh day of September, 1851, or immediately thereafter, received and took into his possession, all the property and effects assigned by the said John L. Van Ness, as aforesaid, and that he, the said defendant, from the date last aforesaid, until on or about the first of January, 1854, used and employed the said assigned property on his own account and for his own benefit, and from the use and uses made of said assigned property, and from the profits derived from the use and uses of said assigned property by said defendant as aforesaid, and from the sales and dispositions made by him, the said defendant, of said property, the defendant has received money, and securities for money, of sufficient amount to pay all the expenses of executing said trust, and all claims and demands of the first class creditors whose names appear and are contained in the list marked "B." annexed to said assignment, abovementioned, and to which, for greater certainty, the plaintiff refers, and that the defendant has paid all the creditors named in said first class, with the exception of the said Cornelia Van Ness.

That the said defendant has refused, and still does refuse, to pay this plaintiff the sums due on said notes abovementioned, or any part thereof.

Wherefore by reason of said breach of duty and of trust and confidence, on the part of said defendant, as trustee as aforesaid, and of his fraudulent appropriation of the property so intrusted to him for the benefit of the creditors of the said John L. Van Ness, and by reason of the premises aforesaid, the plaintiff demands judgment against the said defendant, for the sum of $500, with interest from the first day of April, 1850, and for the further sum of $297.00,

1 This is unnecessary.

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