Vose v. Galpen , 18 Abb. Pr. 96 ( 1864 )

Marvin, J.

The plaintiff charges his co-trustees with breaches of trust, and demands that they be removed. His co-trustees counter-claim that he has been guilty of breaches of trust, and they demand his removal; they also demand that he account. A demurrer is interposed to these answers of counterclaim. I have come to the conclusion that the demurrers are not well taken. The parties who are trustees, became such under an agreement containing many provisions, some of which, the plaintiff alleges, have been broken by the defendant-trustees, and they allege that the plaintiff has broken some of the provisions. If these allegations are true, the proper judgment may be a removal of the defendants and the plaintiff from the trusts assumed by them under the agreement, and the appointment of other trustees in their place.

It is not a case of recoupment, as the one cause of action will not compensate the other, or affect it in any degree. But in my opinion the breaches of trust by the plaintiff, are connected with the subject of the action. They are the breaches of the same trusts which the plaintiff alleges the defendants broke; and these trusts were imposed by the same contract, to which the plaintiff and defendants were parties.

One trustee- may call upon his co-trustee to account, in a proper case, and it may he necessary that he should do so for his own protection. This right to an account grows out of the relation between the parties as trustees, in this case created by the agreement, and connected with the subject of the action. Generally, trustees are not liable for each other’s acts, but in case of culpable negligence, &c., they may be liable, and it may be important for their own protection, that they should protect the trust-property, and require an account from co-trustees, and an execution of the trust.

If any of these trustees are to be removed for breaches of trust, it seems to me that they have a right to have the accounts taken so far as to ascertain their own liabilities .for each other’s acts.

Upon the whole, I have concluded to overrule the demurrer to both answers.