Busse v. Schenck

Van Brtjnt, J. [After stating the facts as above.]—In view of the testimony above referred to, it might be questioned in any event as to whether there was any liability upon the part of the defendants to the plaintiff in this action for any work done, in that he was never employed by them, but that the agreement was that the estate would be responsible to Mr. Barr for what he should pay for the frescoing, and not to the persons whom he employed, but it^ is not necessary to decide this proposition in view of .the fact that there is no evidence of an employment by the estate. Trustees have different powers and authority from executors. One executor may act alone in the administration of the estate, and his acts will be binding upon the estate. Trustees, however, must act jointly. They can make no contracts in regard to the estate; they cannot change the [14] position of the estate, and they can do nothing except by united action. Therefore, in the case at bar, the only evidence being that one trustee authorized the doing of this work (and there is no evidence that the other trustees were cognizant that such work was being done upon the credit of the estate), there was no joint action such as would be binding upon the estate. In the opinion of Mr. Justice Daniels, in Anon v. Gelpcke, (5 Hun 245), most of the cases in reference to the rights and powers of trustees are referred to and commented upon, and the conclusion arrived at by the learned court is in consonance with the principle which has been hereinbefore announced. It is urged that in respect to repairs of the trust property this rule cannot apply, but that the necessities of the case must require that' one of the trustees must have the authority in an emergency to act without waiting for consultation with his co-trustees; as, if a leak in the roof occurs* or any sudden emergency should arise which required immediate action; that such a necessity shows that the rule is not without exception. It might be observed that no such necessity is shown in the present case, as frescoing does not seem to be a work of such a character as requires the immediate action of one trustee when his associates are accessible, but the principle seems to have been recognized in Tiffany & Bullard on Trusts (p. 539), and is referred to by Mr. Justice Daniels, that as far as the ordinary routine business of the estate is concerned, the trustees may constitute one of their number as their agent for the purpose of transacting such business, and that such action is to be considered as the act of an agent rather than of an individual trustee. The proof in this case fails to show that the defendant Wood had any authority whatever from his co-trustees to bind the estate to any expenditure, or that they had- any knowledge whatever, during the progress of this work, that he had attempted so to bind such estate. Under these circumstances I fail to see upon what principle a recovery can [15] "be had against the estate. If Martin Wood exceeded his authority in consenting to the employment of the plaintiff in doing this work, he is individually responsible; but without the consent of his co-trustees, as has been above observed, the estate, which he cannot bind without such consent, is not liable. The judgment appealed from should be affirmed with costs. Charles P. Daly, Ch. J., and J. F. Daly, J., concurred.; Judgment affirmed, with costs.