#### Greene County Bank Resp’t. *v.*Bank of Batavia and Henry Tarbox as Assignee.

*(Supreme Court, General Term, Fifth Department,*

*Filed January*25, 1887).

1. ASSIGNMENT FOR BENEFIT OF CREDITORS — ACTION TO SET ASIDE — WHO MAY BRING.

Where a general assignment for the benefit of creditors was of the individual property of each member of a firm and gave a preference to the individual creditors of each out of his individual property, and also assigned the partnership property, giving the partnership creditors a preference as to that. *Field,*a party being a -judgment creditor of one member of the firm individually, and also of the firm might maintain an action to set the assignment aside as fraudulent and void as against creditors.

2. Same — Parties to action.

In the ordinary creditor’s action to set aside as fraudulent an assignment in trust for the benefit of creditors the *cestuis que trust*are not necessary parties, it being an exception to the general rule prevailing in equitable actions which requires that in suits relating to trust property the *cestuis aue trust*as well as the trustee must be made parties.

Appeal from interlocutory judgment for plaintiff on overruling demurrer to complaint.

The action is to set aside an assignment made by James H. Jones and Evelyn F. House, individually and as composing the firm of Jones & House, of their individual and firm property *415to the defendant Henry F. Tarbox, for tbe purpose of paying their individual and joint debts. The complaint avers the recovery of a judgment by plaintiff in the supreme court against the defendant James H. Jones, its docketing and the issuing of an execution thereon to the proper county, and' its return wholly unsatisfied.

It also avers the recovery of two judgments in the supreme court by plaintiff against the firm of Jones & House, their docketing, the issuing of executions thereon to the proper. county and the return of such executions wholly unsatisfied.

It also avers that after contracting the debts on which said judgments were recovered, the said James H. Jones and Evelyn F. House made a general assignment of all their partnership and individual property in trust for the payment of their firm creditors and for the payment of their individual debts, which assignment was recorded Sept. 28th, 1883. That Tarbox has accepted the trust and taken possession of the assigned property : that by reason of preferences in the assignment the plaintiff cannot receive anything thereunder, or collect its said judgments : that the assignment was made with intent to hinder, delay and defraud the creditors of the firm and the creditors of the individual members of the firm. Various acts, facts and particulars extrinsic to the assignment. are alleged as showing fraudulent intent. Other allegations in the complaint are stated in the opinion.

The defendant Tarbox demurred to the complaint assigning for cause that it appears upon the face thereof that causes of action are improperly joined, viz: a cause of action against defendant James H. Jones, individually, and a cause' of action against him and Evelyn F. House jointly as copartners, which causes of action arise out of and relate to distinct and independent transactions, and each of them does not affect all the parties to the action. The Bank of Batavia assign the same cause of demurrer and also, that the complaint does not state facts sufficient to constitute a cause of action.

*H. F.*Tarbox, for appl’ts; *N. A. Woodward,*for resp’t.

Angle, J.

The assignment is of the individual property of each member of the firm and gives a preference to the individual creditors of each out of his individual property, it also assigns the partnership property, preferring the partnership creditors as to that. In our opinion an action may be brought to set aside such an assignment for the reasons assigned in this complaint, by either an individual or partnership judgment creditor, and that the plaintiff being judgment creditor of one member of the firm individually and also of the firm, is properly seeking by this action a remedy for the collection of both classes of judgments.

*416Wait on Fraudulent Conveyances and Creditors Bills sec., 108, and notes; *Bradner*v. *Holland*33 Hun. 290.

Although no case *precisely*like the present is found, yet these authorities and the cases cited therein contain principles decisive of the present.

This conclusion disposes of the demurrer of the assignee, and the first cause of demurrer assigned by the Bank of Batavia.

The second cause of demurrer by the Bank of Batavia is that the complaint does not state facts sufficient to constitute a cause of action as against that bank. The Bank of Batavia is a preferred creditor for about $18,300, in the aggregate, and the complaint avers that, “ the sum of $10,000 or thereabouts was paid and delivered by said defendant Henry F. Tarbox, as assignee, to *said*defendant the Bank of Batavia pursuant to such preference expressed in said instrument or assignment, and that the said moneys so paid are retained and kept by the said Bank of Batavia under the claim and pretence that said instrument is valid and that it derives a right thereto under and by virtue thereof.”

The complaint also avers “ that - the said Bank of Batavia and the said Henry F. Tarbox, who is, and was, its vice-president and attorney, fraudulently conspired with the said assignee to procure said assignment to be made in the manner and form aforesaid, knowing the same to be fraudulent in the particulars and for the reasons above stated and with intent to procure an unjust preference.”

While it is abundantly settled that in the ordinary creditor’s action to set aside a fraudulent assignment in trust for the benefit of the creditors the *cestuis que trust*are not necessary parties, yet, this is an exception to the general rule prevailing in equitable actions which requires that in suits relating to trust property the *cestuis que trust*as well as the trustee must be made parties. Barb., on Parties, 529.

We are cited to no authorities holding that such *cestuis que trust*are not *proper*parties if the plaintiff sees fit to bring them in, nor is it necessary for us to express any opinion on that question.

In view of the above quoted allegations in the complaint, and the praj'er in the demand for judgment, “ that the defendant, the bank of Batavia, be adjudged to account for, and deliver and pay over to the plaintiff or such receiver the moneys and property it has received, or that have been paid over to it by said assignee, or under said assignment,” we think there is no doubt about the propriety of that bank being made a defendant.

The interlocutory judgment appealed from is affirmed with costs of appeal; with leave to withdraw demurrer and to answer on payment of costs of demurrer and of his appeal.

All concur.