Charles H. Moore, Rec’r, App’lt, v. J. Edward Simmons, Rec’r of the American Loan & Trust Co., et al., Resp’ts.
(Court of Appeals,
Filed June 17, 1892.)
1. Executors and administrators—Rules as to persons dealing with.
One who receives from an executor the assets of his testator with knowledge that such disposition of them is a violation of duty, is to he regarded as conniving with the executor and is responsible for the property thus received, either as a purchaser or pledgee
3. Same.
The officers of the defendant trust company refused to make a loan to one of several executors upon certain stock belonging to the estate unless the other executors consented thereto, but such consent not being procurable suggested or consented to an arrangement by which such stock was assigned to a legatee and a loan made to such legatee on security of said stock. Held, that the company took said stock at their peril and could only escape the consequences of its act by ascertaining whether there were debts or obligations of the estate and seeing that the money paid was applied thereto.
Appeal from judgment of the supreme court, general term, fifth department, affirming judgment dismissing the complaint, entered on the report of a referee.
Action to determine the rights of the parties to certain shares of stock of the Niagara Falls International Bridge Co., which formerly formed a part of the assets of the estate of Roswell S. Burrows, deceased, and which is held by the American Loan & Trust Co. as collateral for a loan of $25,000 made by it under the following circumstances.
One Warner, one of the executors of said Burrows, applied to the company for a loan upon said stock, which was refused unless he obtained the consent of his co-executors. The application was then abandoned, and at the suggestion or with the consent of one of the company’s officers, the stock was assigned to Mary Burrows Smith, one of the legatees under the will of Burrows, and the loan was made to her upon the joint note of said Mary Burrows Smith and the executor, and said stock was pledged as collateral security for said loan.
John Cunneen and B. L. Burrows, for app’lt; David Willcox, for resp’ts.
Per Curiam.
Upon the evidence contained in this record, the case is not altered in favor of the defendant from the case presented to this court on the former, appeal, our decision of which is reported in 115 N. Y., 65; 23 St. Rep., 895. We then held that the evidence raised only a question of law, which we decided in favor of the plaintiff.
If the views of this court upon such questions are to be followed, a plain case in favor of the plaintiff was again made out on the new trial before the referee, and judgment in favor of the plaintiff should therefore have been given. Nothwithstanding our former decision, the referee, upon evidence which did not alter the defendant’s case in any aspect to his advantage, dis*870missed the complaint of the plaintiff, when he ought to have granted judgment in his favor.
For this clear error the judgment should again be reversed, and a new trial ordered, with costs to abide the event.
All concur.