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.

with interest from the ninth day of March, 1850, and the further sum of $606.93, with interest from the twelfth day of March, 1850, besides cost of this action.1

AMOS DEAN,

Plaintiff's Attorney.

(No. 38.)

By cestui que trust against trustees, for an accounting of trust fund and payment of such arrears as shall be found due.

Title of the cause.

The plaintiff in this cause, complains and shows to this court that, prior to the 6th day of May, in the year 1844, she was entitled to a large real and personal estate; that she was married to S. G., now deceased, by whom she had, at the time of his decease, [naming them,] her children; that, prior to the 6th day of May, 1844, her said property had been conveyed to trustees; that the said conveyance having been judicially declared insufficient, the trustees, under said conveyance, to wit, J. V. and J. T., together with the plaintiff in this suit, and her said husband, united in a conveyance, to the defendants, bearing date the said 6th day of May, 1844, a copy of which said conveyance is hereto annexed, marked A,2 and to which the plaintiff refers as a part of this complaint; that the said defendants, the grantees in said deed, accepted the

1 A prayer that defendant account for the trust property and funds may properly be added (see, ante, No. 32), and, also, if a proper case be made, for an injunction and receiver.

2 The conveyance referred to, is a deed of trust to the defendants.

said trust, and undertook to administer the same, and took possession of the property so conveyed.

And the plaintiff further states that, under and by virtue of the said conveyance, the said trustees received and became entitled, as such trustees, to property of the value of about $12,000; and it became and was the duty of the said trustees, to invest the same on good bonds and mortgages, or in the public stocks of this state or of the United States, and to make the same productive; and to pay over the income therefrom, as the same accrued, into the hands of the plaintiff, as the same should be collected, and no faster, and not in any event or manner to anticipate the said rents, income or profits, or any part thereof.1

And the said plaintiff, further states that the said de fendants, trustees as aforesaid, have not, nor has either of them, well and faithfully discharged their said trust; and she avers that, although they have received large sums of money, at different times, arising out of said funds and property, and the income thereof so received in trust, yet that they have not paid over the same to her, as required by said trust deed; and this plaintiff charges, that the said defendants have not invested the said trust property so as to make the same as productive as they could and ought to have done.

Wherefore the said plaintiff prays that the said defendants may be required to account with the plaintiff, or some person appointed by the court, on her behalf, and on such accounting, set forth a full statement of all the property, by

1 This is the allegation of a mere legal duty, or conclusion of law, and is not, properly, a part of the complaint. It is, no doubt, such a redundancy as the court would strike out on motion.

2 In the original complaint, the prayer was, that the "defendants may be required to answer and set forth a full statement," &c. I have altered it as above. The defendants could not be required to

them and each of them, received under the said deed, and the manner in which the same has been invested; and the income of the same, and the sums paid, or claimed to have been paid, and the date of such payments, and to whom paid; and whether any, and which, of such payments were made upon the order of this plaintiff; and whether the said defendants, or either of them, claim to be credited for sums paid to other persons; and for which fund receipts have been taken from the plaintiff, without any payment being actually made to her; and that the defendants may be required to account, not only for all such moneys as they heve received, but also for such as without wilful neglect, they might have received, on account of the said trust; and may be adjudged to pay to the plaintiff all such arrears as shall be found due to her, and that the said plaintiff may have such further relief, with costs, as shall be proper and just.

VAN SCHAACK & OLCOTT,

Atty's for Piff.

(No. 39.)

For removal of trustees, one refusing to act and the other insolvent, having applied the trust funds to his own use; praying an account, injunction and receiver, and reference to appoint new trustees.

Title of Cause.

The plaintiffs, complaining of the defendants, allege the following facts constituting their cause of action.

answer anything more than the facts set forth in the complaint, but the Court may require and order a full accounting, as demanded above.