Buck v. Westchester Trust Co.

250 A.D. 877, 295 N.Y.S. 216, 1937 N.Y. App. Div. LEXIS 9534

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1937
• Status: Published

Opinion

In an action in the right of the beneficiaries of a trust against their former trustee, to recover trust property alleged to have been converted by the latter and now in the form of real estate held by it as the result of the purchase of mortgaged real property at a sale thereof in foreclosure, order denying defendant’s motion to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action affirmed, with ten dollars costs and disbursements, with leave to defendants to answer within ten days from the entry of the order hereon. Sections 72 and ,76 of the Banking Law, upon which the trustee appellant relies, are without application to the claim of the plaintiffs, which is not against the assets of the defendant bank, trustee (Matter of International M. Co. [Broderick], 259 N. Y. 77, 84, 85; Matter of Prime, 249 App. Div. 28), but contemplates the recovery of specific trust property converted by the defendant trustee. Zuroff v. Westchester Trust Co. (273 N. Y. 200) is not at variance with our conclusion. Lazansky, P. J., Carswell, Davis and Taylor, JJ., concur; Adel, J., dissents and votes for reversal on authority of Zuroff v. Westchester Trust Co. (273 N. Y. 200).