Ellis v. National City Bank

260 A.D. 885, 22 N.Y.S.2d 947, 1940 N.Y. App. Div. LEXIS 5222

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1940
• Status: Published

Opinion

Order denying defendant’s motion to dismiss the complaint upon the ground that it fails to state a cause of action, reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, without prejudice to any suit or proceeding brought for a judicial accounting if the plaintiff be so advised. The action is brought by the remainderman of an express trust, against the trustee, to recover the original amount of the trust fund upon the theory of money had and received. Such an action will not lie against a trustee of an express trust prior to an accounting which establishes the amount of the fund and the person to whom it is to be paid. (Husted v. Thomson, 158 N. Y. 328, Deering v. Pierce, 149 App. Div. 10; Anderson v. Fry, 116 id. 740; Roberts V. Ely, 113 N. Y. 128, 132.) Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.