May v. Jung

10 Daly 128, 65 How. Pr. 476

• Court: New York Court of Common Pleas
• Decided: May 15, 1883
• Status: Published

Opinions

Van Brunt, J.

I entirely fail to see by what authority a party to a decree in equity upon an accounting by a trustee, which simply adjudges that the trustee has -in his hands, as trustee, a certain sum of money, out of which he is directed to pay certain sums, can docket a judgment personally against the trustee as a matter of course. It is true that the assignment law provides that the decree shall be entered, docketed and enforced the same as if made in an original action brought in the county court, but it certainly was not intended that any different course should be pursued than if an action had been commenced in a court of equity against a trustee as such for an accounting. In such an action ho individual judgment against the trustee as such can be entered, unless provision was made therefor in the decree.

In the case at bar there is not the slightest hint in the decree but that the assignee has not the money to pay the amount directed to be paid, and, without any neglect or default upon his part being brought to the notice of the court, a judgment is docketed against him individually and execution issued against him individually.

If this is the practice under the Assignment Act, then the moment a decree is entered upon the accounting of an assignee, directing the assignee to pay out of his hands certain moneys to creditors, each creditor has the right to docket á judgment at once against the assignee individually, and issue execution against his individual property, no matter how willing the assignee may have been to pay the claims against the estate.

No trustee has ever been placed in this position before, and it does not seem to me that the Assignment Act was ever intended to work such an injustice. W hat the power of the court might be, upon its being shown that an assignee had not complied with its decree, it is not necessary to determine; but that an assignee was intended to occupy a relation so different from that of every other trustee in the method of enforcing decrees against them does not seem to be possible.

It is a familiar principle that a trustee is not liable individually unless he has been guilty of a breach of trust; but in the case at bar he is condemned and executed without ever having had an opportunity of being heard upon the subject as to whether or not he had been guilty of a breach of trust. A breach of trust in general creates only a single contract of debt, and must be enforced as such; but when the trustee has, under seal, covenanted to apply the trust fund according to the trusts declared, a breach of that engagement would create a special debt against him (Hill on Trustees, 519).

If this is the rule, it seems to be clear that a trustee cannot be charged individually as for a breach of trust without having an opportunity to be heard.

I am of the opinion that the judgment entered against Ferdinand Jung was void, the clerk having no authority to enter the same, and the order appealed from should be affirmed.