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Twelfth. That the said Vanderbilt, Morgan, Hoyt, Work, Whitewright, St. John, Allen and Hall have in their possession or under their control all the property of the said company.
Thirteenth. That the plaintiff was, at the time of the said decree of dissolution, a stockholder of the said company, then owning two hundred shares of the stock of the said company in his own right, the par value of each share being $100; and that he is now, and has ever since been, such holder on the books of said company.
Wherefore the plaintiff demands judgment, that the said company be declared to be dissolved; that a receiver of all the property of said company be appointed; that the said defendants, and each of them, be enjoined from parting with, or disposing of, any of the property or effects of the said company; that the said Vanderbilt, and all the other defendants, be ordered to account for all money and other property received by them, or any of them, from or for or on account of the said company or the stockholders thereof; and in particular that the said Vanderbilt may account for all moneys received by him from the Pacific Mail Steamship Company; from C. K. Garrison, agent at San Francisco; from William C. Templeton, agent at New Orleans; and James M. Cross, agent at New-York; and that the debts of the said company may be paid, and the property of the said company may be distributed among the stockholders thereof.
FIELD & SLUYTER,
Plaintiff's Attorneys. 41
( No. 77.)
Commencement and conclusion of a complaint brought against
a person appointed executor of one who had acted in a fiduciary capacity, or as trustee of the plaintiff, in respect to certain large transactions in real and personal property which he had conducted in his own name, but, as alleged, for the benefit of the plaintiff, praying a discovery, an accounting, a receiver, injunction, fc.
SUPREME COURT - DUTCHESS COUNTY.
agt. Robert Reade.
James Hooker, plaintiff in this action, complains of said Robert Reade, defendant, for this, to wit:
That heretofore, in the year 1828, one Robert L. Reade, then of the city and county of New York, became the agent of the plaintiff, and subsequently his agent and trustee, in respect to certain real and personal estate and property in the city and county of New York, under the circumstances and in the manner hereinafter particularly set forth, and, as such agent and trustee, received and acted in his own name, and managed, but, as the said plaintiff alleges, as the trustee of him, the said plaintiff, large amounts of real and personal property, which receipt, agency and management continued up to the time of the decease of the said Robert L. Reade, on the 5th day of October, 1852, and at which period the said trust had not yet terminated, or been settled or closed by said Robert L. Reade.
And the said plaintiff further shows, that at the time of his decease, as aforesaid, he left a last will and testament, which has been proved and recorded as a will of real and personal estate, by and before the surrogate of the city of New York, where the said Robert L. Reade resided at the time of his death, and that letters testamentary thereon have not been granted by said surrogate to the executor, Robert Reade, therein named, on account of objections thereto by plaintiff as a creditor of said deceased.
That in and by said will, the said Robert L. Reade has devised and bequeathed the principal part of his estate and property to said Robert Reade, said Robert L. Reade having never been married, and having died without lawful issue; said property and estate, to a very large amount thereof, although standing in the name of said Robert L. Reade, yet in fact belonging to said plaintiff, for whom said Robert L. Reade was a trustee and agent, as hereinafter set forth.
[ The complaint, which is very voluminous, here sets forth a variety of transactions and correspondence between the plaintiff and the deceased and others, tending to establish the agency or trust, and to show that the deceased acted as the agent or trustee, though in his own name, of the property, real and personal, described, and for the benefit of the plaintiff.]
And the said plaintiff further shows, that the said Robert L. Reade then still continuing to reside in the said city of New York, and having discharged the trust so before committed to him in relation to the management and sale of the property so as aforesaid purchased of him by his deed of the 13th of August, 1828, and sold and conveyed by the said plaintiff to said Charles Henry Hall, by deed of the 1st of December, 1828, as before related, to the entire satisfaction of the said plaintiff, and he, the said Robert L. Reade, being willing to take the charge and management for the said plaintiff, and as his agent, of the property so conveyed as abovementioned by said Charles Henry Hall to the said plaintiff, who then, still continuing to have full confidence in the ability and integrity of said Robert L. Reade, intrusted him with the care and management and sale of the same.
That, under such authority so intrusted to him, sales were from time to time made to different persons, as represented by him to the said plaintiff, and reported by him, the said Robert L. Reade, to the said plaintiff for his action thereon, and instead of the said plaintiff making the conveyances direct to the purchasers, he did, on the suggestion of the said Robert L. Reade, make the conveyances to him, the said Robert L. Reade, not on a sale to him, and no money being received from said Reade at any time as the consideration of said deeds, but for him, the said Robert L. Reade, for reasons suggested by himself, to convey the lots so sold over to the purchasers, under the authority so intrusted to him. That the said sales were mostly on credit, the purchase money being generally secured by bond and mortgage on the premises, and sometimes on additional lots, where no part or where only a small part of the purchase money was paid down on the sale, as represented by said Robert L. Reade to the said plaintiff. And as it was also represented by him that money was required to pay assessments on the property, which was rapidly improving, and as the said plaintiff was well aware such assessments and taxes and necessary improvements were frequently and unavoidably requiring considerable sums and amounts to be paid and advanced, it was deemed best, for the covenience of the said Robert L. Reade as well as the said plaintiff, that the bonds and mortgages taken on such sales should be taken in the name of said Robert L. Reade, for which he would of course be accountable as effectually to all intents and purposes as if taken in the name of the said plaintiff and delivered over to him, and, it was believed, with much less inconvenience, in case it should be necessary to raise money by transfer, assignment or otherwise, to which arrangement the said plaintiff, having full confidence in said Robert L. Reade, without hesitation assented.
[ The complaint here sets forth various other transactions, conveyances, records, correspondences, 8c., tending to establish the beneficial interest of the plaintiff in the property, and that deceased had no interest therein other than as agent or trustee. ]
And the said plaintiff further shows, that said Robert L. Reade has not settled with and accounted for and paid over to him the rents, profits, interest and avails of the said property, or any part thereof, he frequently giving the said plaintiff to understand that he would satisfactorily arrange and account for said trust and his management of the same, but which he delayed until his decease rendered the same impossible. And said plaintiff did not compel said accounting, because he hoped said Robert L. Reade would, in some way and time agreeable to himself and just to the plaintiff, voluntarily render the same, and because, also, much of the said real estate was still undisposed of, and was being managed by him with care, skill and prudence, and also because the records before referred to, and the correspondence of said Reade, together furnished complete evidence of the said trust to be used and resorted to at any time when the interest of the parties required the same, and for other reasons deemed at present unneces
sary to state.
And the said plaintiff further shows, that the sole executor named in said will is said Robert Reade, who, as plaintiff believes, is about 30 years of age, residing at Binghamton, in the county of Broome, who has little or