Hatch, J.
It was deemed essential to state the facts connected with this motion with some fullness that the equities applicable thereto might clearly appear. From these facts and the record it appears that at the time of the execution of the bonds plaintiff and Frank occupied no other relation to the bondholders than such as arose by virtue of their trusteeship to sell the bonds, receive and pay the interest; no personal liability attached to them for any defaults that might be made which did not involve an omission to properly discharge the duties of their trust. Eliminating from this case now all records and proceedings by virtue of which the fund herein has been obtained, we see that it comes to the hands of the trustees by virtue of their capacity as such, and in none other.
The result, therefore, of the litigation, however or by whomsoever carried on, has been to bring into court a sum of money payable to no particular individual, not even to the plaintiff, but payable to trustees to be by them distributed in accordance with the obligation imposed upon them by their original appointment We, therefore, have presented a case where a litigation, carried on by one of the trustees for a period of years, resulting in a judgment directing the funds to be paid to representatives appointed for distribution, in which we are asked to say that the person carrying on the litigation, who finally receives the money, of which he takes nothing personally, has occupied and now occupies the position of an individual litigating for his own interest with respect [10]*10to the fund, and must pay, not only his own expenses, but the charges of counsel; while he gets nothing and the beneficiary takes all, without charge, cost or trouble. If this be the law, it must be declared so by some other tribunal than this. It would be, perhaps, conceded that if the plaintiff had conducted this litigation in his representative capacity, or been without personal interest or liability with respect to the subject matter thereof, that then the rule would be different with respect to his right for reimbursement. Does the fact then that Woodruff was surety for the payment of these bonds and interest thereon so far change his relation thereto that it must be said that he so carried it on as his personal matter, with the sole purpose and object of relieving himself from his personal obligation, and in no sense to create a fund for the benefit of others ? This presents one of the questions urged and attacks the power of the court. When Wood-ruff took the lease from the Erie & Genesee Valley Railroad Company, he thereby assumed the payment of the bonded d$bt, §.nd became, as to the Erie railway, the defendant herein, and the bondholders, a surety for the payment of the coupons as they matured. It was doubtless intended at the timé of the execution of the lease that the Erie railway was to become the real and, practically, the primary party in the operation of the road, the extension of its line, and the payment of interest upon its bonded debt, for in the lease from the Erie & Genesee Company to the plaintiff is found this clause: “ In case of payment of the bonds by the party of the first part, or the Erie Railway Company, thereafter the annual rent to be one dollar and taxes.” The answer of the Erie Railway Company and of the receiver also pleads as a defense that plaintiff simply occupied the position of surviving trustee, and that any cause of action which might exist belong to the surviving trustee under said trust deed, and not to plaintiff. While these facts do not change the legal obligation of the parties, it bears upon the equity of the application and'plaintiff’s standing.
Such position is also reinforced by the fact that it does not appear that plaintiff was in any sense benefited by the assumption of the liability, as the lease to the Erie Railway was upon terms similar to the one to him. That he occupied the position of a conduit simply, except that the liability attached in the passage. After default in payment of the maturing coupons, the subsequent insolvency of the Erie Railway, and the appointment of the receiver, plaintiff obtained leave to commence an action against the latter. This he commenced, making the receiver party defendant with others. No actions have ever been commenced against plaintiff to enforce payment of the coupons. The issue between the parties was at once sharply defined, and the claim made that plaintiff had no standing in court and no cause of action against the defendants ; that the said agreements were inoperative and void, creating no liability against or in favor of any person, and the claim thus made has been pressed, with great ability, vigor and skill, upon the courts, from the special term to the court of appeals not only once but twice, and [11]*11again in the trial term of this court. The fierceness of the contest has been prolonged for a period of thirteen years and upwards, and has resulted at last in the surrender by the present defendant, and the money paid, not to the plaintiff, however, as an individual, but to him as trustee for distribution among the coupon holders, of which it does not appear that he is entitled to a single dollar. During this period of thirteen years he has borne the whole expense of the litigation, except as his adversary has been by the court compelled to pay certain costs, wholly inadequate by way of recompense, and except the printing of the last case on appeal to the court of appeals. It is now claimed that plaintiff is entitled to nothing, either for money actually expended or for an allowance as compensation, and that in addition his counsel is entitled to nothing beyond the costs taxed and allowed, except as he has the right to demand it from the plaintiff. The claim thus advanced, and as pertinaciously argued as any other in this much litigated case, rests for its basis upon the ground that plaintiff assumed the payment of the interest by virtue of his lease and consequently that he was litigating alone to relieve himself from liability as a primary debtor. I am not inclined to adopt this view; on the contrary it impresses itself upon my mind that his liability was simply an incident in the controversy.
The property of the lessor railroad, with all its appurtenances, were in the possession and under the control of the defendants in the several actions. This was the property relied upon as security for the payment of the bonds and interest; as security, the value of its use was the controlling element. Defendants had been in the occupancy and use since the date of the lease and continued through the whole period covered by the litigation; their claim to possession rested upon the consent of the Genesee Valley Railroad Company and the rights of the public, and they utterly repudiated being bound by any and all agreements beyond, perhaps, such as the law might create based upon the value of the use, and as to that, anchor was cast to the windward in the form of an allegation in the answer that the expense of such use and occupation been much more than the revenue derived therefrom. Thus the controlling issue presented for determination was the validity of the agreements. If the attack upon them succeeded then plaintiff’s liability was at once discharged, and with it went the value of the use of the property for the period of the occupancy, and, at once, the security for the payment of the maturing and matured interest took to itself wings, as' it may be assumed the property was not sufficient to pay its mortgage with accumulated interest.
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Hatch, J.
It was deemed essential to state the facts connected with this motion with some fullness that the equities applicable thereto might clearly appear. From these facts and the record it appears that at the time of the execution of the bonds plaintiff and Frank occupied no other relation to the bondholders than such as arose by virtue of their trusteeship to sell the bonds, receive and pay the interest; no personal liability attached to them for any defaults that might be made which did not involve an omission to properly discharge the duties of their trust. Eliminating from this case now all records and proceedings by virtue of which the fund herein has been obtained, we see that it comes to the hands of the trustees by virtue of their capacity as such, and in none other.
The result, therefore, of the litigation, however or by whomsoever carried on, has been to bring into court a sum of money payable to no particular individual, not even to the plaintiff, but payable to trustees to be by them distributed in accordance with the obligation imposed upon them by their original appointment We, therefore, have presented a case where a litigation, carried on by one of the trustees for a period of years, resulting in a judgment directing the funds to be paid to representatives appointed for distribution, in which we are asked to say that the person carrying on the litigation, who finally receives the money, of which he takes nothing personally, has occupied and now occupies the position of an individual litigating for his own interest with respect [10]*10to the fund, and must pay, not only his own expenses, but the charges of counsel; while he gets nothing and the beneficiary takes all, without charge, cost or trouble. If this be the law, it must be declared so by some other tribunal than this. It would be, perhaps, conceded that if the plaintiff had conducted this litigation in his representative capacity, or been without personal interest or liability with respect to the subject matter thereof, that then the rule would be different with respect to his right for reimbursement. Does the fact then that Woodruff was surety for the payment of these bonds and interest thereon so far change his relation thereto that it must be said that he so carried it on as his personal matter, with the sole purpose and object of relieving himself from his personal obligation, and in no sense to create a fund for the benefit of others ? This presents one of the questions urged and attacks the power of the court. When Wood-ruff took the lease from the Erie & Genesee Valley Railroad Company, he thereby assumed the payment of the bonded d$bt, §.nd became, as to the Erie railway, the defendant herein, and the bondholders, a surety for the payment of the coupons as they matured. It was doubtless intended at the timé of the execution of the lease that the Erie railway was to become the real and, practically, the primary party in the operation of the road, the extension of its line, and the payment of interest upon its bonded debt, for in the lease from the Erie & Genesee Company to the plaintiff is found this clause: “ In case of payment of the bonds by the party of the first part, or the Erie Railway Company, thereafter the annual rent to be one dollar and taxes.” The answer of the Erie Railway Company and of the receiver also pleads as a defense that plaintiff simply occupied the position of surviving trustee, and that any cause of action which might exist belong to the surviving trustee under said trust deed, and not to plaintiff. While these facts do not change the legal obligation of the parties, it bears upon the equity of the application and'plaintiff’s standing.
Such position is also reinforced by the fact that it does not appear that plaintiff was in any sense benefited by the assumption of the liability, as the lease to the Erie Railway was upon terms similar to the one to him. That he occupied the position of a conduit simply, except that the liability attached in the passage. After default in payment of the maturing coupons, the subsequent insolvency of the Erie Railway, and the appointment of the receiver, plaintiff obtained leave to commence an action against the latter. This he commenced, making the receiver party defendant with others. No actions have ever been commenced against plaintiff to enforce payment of the coupons. The issue between the parties was at once sharply defined, and the claim made that plaintiff had no standing in court and no cause of action against the defendants ; that the said agreements were inoperative and void, creating no liability against or in favor of any person, and the claim thus made has been pressed, with great ability, vigor and skill, upon the courts, from the special term to the court of appeals not only once but twice, and [11]*11again in the trial term of this court. The fierceness of the contest has been prolonged for a period of thirteen years and upwards, and has resulted at last in the surrender by the present defendant, and the money paid, not to the plaintiff, however, as an individual, but to him as trustee for distribution among the coupon holders, of which it does not appear that he is entitled to a single dollar. During this period of thirteen years he has borne the whole expense of the litigation, except as his adversary has been by the court compelled to pay certain costs, wholly inadequate by way of recompense, and except the printing of the last case on appeal to the court of appeals. It is now claimed that plaintiff is entitled to nothing, either for money actually expended or for an allowance as compensation, and that in addition his counsel is entitled to nothing beyond the costs taxed and allowed, except as he has the right to demand it from the plaintiff. The claim thus advanced, and as pertinaciously argued as any other in this much litigated case, rests for its basis upon the ground that plaintiff assumed the payment of the interest by virtue of his lease and consequently that he was litigating alone to relieve himself from liability as a primary debtor. I am not inclined to adopt this view; on the contrary it impresses itself upon my mind that his liability was simply an incident in the controversy.
The property of the lessor railroad, with all its appurtenances, were in the possession and under the control of the defendants in the several actions. This was the property relied upon as security for the payment of the bonds and interest; as security, the value of its use was the controlling element. Defendants had been in the occupancy and use since the date of the lease and continued through the whole period covered by the litigation; their claim to possession rested upon the consent of the Genesee Valley Railroad Company and the rights of the public, and they utterly repudiated being bound by any and all agreements beyond, perhaps, such as the law might create based upon the value of the use, and as to that, anchor was cast to the windward in the form of an allegation in the answer that the expense of such use and occupation been much more than the revenue derived therefrom. Thus the controlling issue presented for determination was the validity of the agreements. If the attack upon them succeeded then plaintiff’s liability was at once discharged, and with it went the value of the use of the property for the period of the occupancy, and, at once, the security for the payment of the maturing and matured interest took to itself wings, as' it may be assumed the property was not sufficient to pay its mortgage with accumulated interest. If the main purpose of the litigation was to secure the release of plaintiff from his liability, it is inconceivable that he did not accept the judgment of the general term of the supreme court, which effectually wiped out any personal liability disclosed by the present motion. Woodruff v. Erie Railway Co., 25 Hun, 246.
But he appealed, not to relieve himself, but for the purpose of securing the property, and the value of its use, upon the faith of [12]*12which the bonds had been negotiated; had he been defeated his liability was gone and with it went the value of the use of the property, and probably the sum of money secured by this judgment and now under the control of the trustees. He succeeded, secured the money and incidentally fixed his liability. Plaintiff was not a primary debtor, it was the Genesee Valley Road who excuted the bonds, and the real security for their payment was the road, and its earning power measured the value. It was to save that, as we have already seen, and in doing that Woodruff represented the bondholders. At the most he can only be said to have represented himself as surety in connection with a represesentation that enured to the benefit of all creditors.. It is not seen how this dual relation is inconsistent with his trusteeship. It is true the suretyship gave him standing to litigate, but the fruits of it fix the liability of a solvent debtor for the payment of the bonds and the fund enures to the benefit of the coupon holders.
The release taken by the plaintiff, as we have seen, made him'the conduit through which the leased road was'placed in possession of a responsible party who would pay the interest and extend the road; this contract therefore enured to the benefit of the bond holders and was made for the purpose of security and for the advantage of the leasing company as a provision for paying the bonds. Under this scheme therefore it is quite apparent that it was intended that the road should be operated by a company that would develop its capacity and thus that the road, the real primary security for payment of the bonds, should be made to pay in the operation and the whole to enure to the benefit of the bond holders. This scheme the plaintiff has enforced by compelling the operators of the road to pay as originally intended and his suretyship has been incidental to the main purpose, and as plaintiff takes no beneficial interest in the fund, I am of opinion that he becomes entitled to an allowance upon the principle applicable to trustees.
Counsel cites The Attorney-General v. North American L. Insurance Company, 91 N. Y., 57, as opposed to this conclusion. In that case the attorney-general had obtained judgment dissolving defendant as an insolvent corporation. A receiver was appointed of its assets. On a hearing to determine the amount of allowance to the receiver, certain policy holders were allowed to intervene; the commissions were naturally reduced ; upon an aj> plication for allowance by the attorneys of the policy holders it was held that the court had no power to grant it. But the opinion expressly recognizes the rule that the court in its control of a fund is bound to recognize every substantial equity and every existing right in providing for the distribution of the fund. Equity was denied existence on that application, as the petitioners had brought no fund, into court, were not parties to the original action, and had simply intervened to protect personal rights. The present application presents different features. Plaintiff was the prosecutor in the original action, and in the last the settlement of the issues have adjudged that the party in the occupation of the property, the primary security, must pay for such use and occu[13]*13potion, not only for the interest due but the bonds as well; plaintiff comes into court bringing a fund the result of his exertions, and in this fund he has no personal interest except to distribute it as trustee.
This seems, therefore, to be a case where equity and justice press for recognition and is within the spirit of that decision. This motion to vacate the orders, notwithstanding the views here expressed, must be granted, as the parties appearing are entitled to notice and an opportunity to contest the amount of the sums allowed. The granting of the allowances without notice -was the result of misapprehension. The order will, therefore, be that the orders heretofore entered be vacated and set aside, and that a referee be appointed to take proof and determine the amount of the several sums to be allowed to the persons thereto entitled, and report to this court with his opinion thereon. If the parties cannot agree upon a referee, then the court to appoint, and when the parties have agreed upon the referee or the court shall appoint, then a day shall be fixed for a hearing, and such appointment shall be sufficient notice to the parties who have appeared upon this motion upon service of the order herein. The usual notice as for trial before a referee shall also be given by plaintiff to the holders of such other coupons as are known to him, and are entitled to distribution in said fund; and in the event that no such coupon holders are known, then notice shall be given to Augustus Frank as trustee, except that in the latter event said Frank having appeared upon this motion, service of the order fixing the time for such hearing shall be deemed sufficient. No costs of this motion allowed to either party.