Opinion
April Term, 1899.
Judgment affirmed, with separate bills of costs to each of the defendants appearing on this appeal.
This action has been before this Appellate Division upon various occasions, and it would seem that the rights of the parties had, upon these several appeals, been settled. After it had been determined by this court that the plaintiff in this action could not, as against the beneficiaries of the fund which he held in his hands as trustee, offset a personal claim, there seemed to be but one thing to be done, and that was to determine the amount of the interest of the beneficiaries in the fund. This has been done by the parties by the stipulation entered into by them, and it was thereupon the duty of the trustee to distribute the fund in the manner agreed upon by the beneficiaries. This stipulation being before the court by the supplemental complaint, when this action came to trial, if the defendants were willing to be bound by the allotment specified in the stipulation, there was nothing for the court to do but enter judgment against the plaintiff for the amounts therein mentioned in favor of the various beneficiaries. The claim upon the part of the plaintiff that any fiduciary or trust relation had been waived by the defendants, certainly has no foundation in fact. As has been previously announced by this court, after the making of the stipulation, the parties had a right either to proceed in this action or separately to sue for their individual interests as stated in the stipulation. They close the former, they proceeded with this action and were entitled to judgment for a distribution of this trust fund. The parties, as between themselves, making no objection to the manner in which the fund is distributed, the trustee would certainly be protected by its payment as directed by the judgment. But it would appear that such payment is to be delayed by the plaintiff as long as subterfuges can be resorted to in order to postpone the performance of a plain duty upon the part of the plaintiff. The judgment should be affirmed with separate bills of costs to each of the defendants appearing upon this appeal. Patterson, O'Brien, Ingraham and McLaughlin, JJ., concurred.