Nelson v. Eaton

7 Abb. Pr. 305

• Court: New York Supreme Court
• Decided: October 15, 1858
• Status: Published

Opinion

By the Court.—Sutherland, J.

—This action was brought, by the plaintiffs as trustees. In their complaint they set forth the trust instrument or agreement, by which they were not only created such trustees, but under which the note on which the suit was brought, with other notes, came into their hands, as such trustees, as collateral security for the payment of certain notes of the parties, executing the trust instrument; and by the trust instrument it appears that the plaintiffs had a right to sell the said collaterals at public or private sale at their option, and without advertising the same, or otherwise giving any notice.

The trust instrument, expressly specifying the terms on which the note on which this suit is brought came into the plaintiffs’ hands as such trustees, and expressly giving them the right to sell, &c., but not to sue, the plaintiffs had no right to bring this action as such trustees.

There is no room for presumptions arising from their being the holders of the note. They themselves set out the manner in which they hold it and their rights over it. They had a right to sell it without advertising it, or otherwise giving notice; but with the express agreement before us, there is no place for a presumption that they had a right to sue it as the owners and holders.

I think the judgment of the court below, overruling the defendant’s demurrer to the complaint, should be reversed, and that there should be judgment for the defendant on the demurrer, with costs.