Sibell v. Remsen

Sutherland, J. This action was brought by Sibell, as assignee of an association or corporation called the Forest and Agricultural Steam Engine Company, under a general assignment of its ju'operty and effects, alleged to have been made to him by that association or corporation, for the benefit of its creditors. The answer denies the right of the plaintiff to bring the action as such assignee; and alleges, if any such assignment was made, that it was and is not valid, and that by virtue thereof the plaintiff cannot maintain the action. The judge before whom the cause was tried held that the assignment was void, and that no title to the property of the association or corporation ever passed to the plaintiff by the assignment, and dismissed the complaint. It having been thus determined that the action was not in fact brought by the plaintiff as assignee or trustee of an express trust, he cannot claim the exemption from costs, given to the trustee of an express trust by § 317 of the code. This judicial determination that the plaintiff did not in [442] fact prosecute this action as the trustee of an express trust, must control us in deciding this appeal from the order made hy Judge Davies. I think the plaintiff took upon himself the risk of having his right to prosecute as assignee or trustee, denied and determined against him. It is not a question of good faith, in bringing the action as trustee; but a question of fact, whether the action was prosecuted by the trustee of an express trust. I think the order appealed from should be affirmed, with costs. Roosevelt, J. The issue in this cause was, whether the plaintiff was a trustee or not. It was found that he was not. He cannot, therefore, in this cause, claim exemption from costs, on the ground that he was.