Whitney v. Page , 1 How. Pr. (n.s.) 389 ( 1885 )

Tan Brujstt, J.

— The main question involved in this case seems to be whether the defendant was justified in the payment of the assessments levied upon the stock, and whether he had a right to demand their repayment before delivering the stock to the plaintiff. If, in the case of Duffy agt. Donovan (52 N. Y., 634), the law is truly stated (and it is not for me to question it), in equity the defendant held this stock in trust for the plaintiff, and as he was bound to protect the title he had no option but to pay, as non-payment would have forfeited the stock. In the case of Duffy agt. Donovan the payment of taxes, assessments and interest was allowed by a party who was in default in not delivering possession of property. How much more equitable is it to allow such payments made by a party who is not in default ? Such being the case the defendant had the right to demand repayment of assessments paid by him, and if such repayment was refused he was justified in his refusal to deliver.

The complaint must therefore be dismissed, with costs.