inference that the authority conferred upon the board of estimate and apportionment with respect to positions not created by the express provisions of the statute relates to positions created in the offices the heads of which are enumerated in the section. I am of opinion that the duties required to be performed by the public administrator, and for which he receives a salary and fees which are prescribed by the statute relating to a county treasurer acting as a public administrator, are not embraced in the public business to which the provisions of said section 4 relate, and that it was intended that he should, at his own expense, employ such services as might be necessary to enable him properly to perform the duties of the office, and that his employés are not public officers and do not hold public positions.

It follows therefore that the order should be reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Order filed.

MCLAUGHLIN and CLARKE, JJ., concur.

SCOTT, J. (dissenting). The facts are fully stated in the opinion of Mr. Justice LAUGHLIN. The sole question, as I look at it, is as to the authority of the board of estimate and apportionment to establish the position and fix the salary of a stenographer and typewriter in the office of the public administrator in the county of Bronx, for it is not questioned that, if the board had such power, the position was duly established and the salary duly fixed and the relator is entitled to hold the position and to receive the salary. The sole ground upon which payment has been withheld is that her office was never legally created, because not specifically provided for by statute.

It is quite obvious, or at the very least may reasonably be assumed, that the public administrator of a populous county like the Bronx will find it impossible to properly and efficiently perform the duties of his office without some clerical assistance, and, as modern business is conducted, if he needs any clerical assistance at all, a stenographer and typewriter would be one of the most necessary aids. It is true that the act erecting the county of Bronx does not in specific terms authorize the public administrator of that county to appoint subordinates, but by section 3 of chapter 548 of the Laws of 1912, erecting the county of Bronx, as amended by chapter 825, Laws of 1913, the public administrator of that county is given "all the authority and powers within said county of Bronx as are now conferred by law upon the public administrator of the county of New York." Section 2 of chapter 230, Laws of 1898, confers upon the public administrator of the county of New York "the appointment and removal of his subordinates." This we think confers upon the public administrator of the Bronx the power to appoint and remove his subordinates, but it does not confer upon him authority to create positions or fix salaries. All it does is to provide that, when the positions have been legally created, the power of appointment thereto and removal therefrom shall vest in the public administrator.

The power to create the position and to fix the salaries therefor must be found, if at all, in another section of the act erecting the county of Bronx. Section 4 of chapter 548, Laws of 1912, as amended by chapter 266, Laws of 1913, appears to vest such power in the board of estimate and apportionment. That section, after fixing specifically the salaries of certain elective officers of the county, provides as follows:

"And except as herein otherwise provided the positions, terms, grades, salaries, and compensation of all persons who may be appointed under the provision of law by any of the officers above mentioned or who may be required to carry on the public business as contemplated by this act shall be fixed by the board of estimate and apportionment of the city of New York.

*

The use of the disjunctive "or," in the sentence quoted, seems to divide the positions to be created, and the terms, grades, and compensation thereof into two categories: First, those to be appointed by the elective officers mentioned in the earlier part of the section; and, secondly, those not so appointed, but who may nevertheless be required to carry on the public business of the county. If this were not the purpose of using the disjunctive and the power of the board of estimate and apportionment to create positions was intended to be limited to the subordinates of the enumerated elective officers there was no apparent reason for inserting after the clause clearly providing for all such subordinates, the words "or who may be required to carry on the public business as contemplated by this act." These words must therefore be considered as intended to provide for the creation of positions not directly subordinate to and filled by appointment by the enumerated elective officers. And this appears to be a most reasonable construction of the act. The Legislature was engaged in erecting a new county, situated wholly within the city of New York. To do this effectively it was deemed necessary to create a county organization of officials, to carry on the county business. It was logical therefore to determine by the act what the principal officers of the county should be, and how they should be compensated. It would have been quite impracticable to determine intelligently in advance, and to specify in the act just what and how many subordinate officials would be required to carry on the public business, and as a consequence that matter was left to the discretion of the board of estimate and apportionment, a board which was doubtless deemed, and with justice, to be in a position to determine from time to time what subordinate officials were necessary to properly carry on the business of the county and how they should be compensated. This was quite in line with the general legislative practice of recent years. It is obvious, and must have been. contemplated by the Legislature, that all of the public business of the county might not be conducted by the elected officers. Indeed, the office of public administrator is a case in point. The business conducted by him is certainly public business, and, although appointed by the surrogate, he is an independent officer not a subordinate of the surrogate, and, as has been said, it is not unreasonable that he should need clerical assistance.

That portion of section 4 of the act of 1912 as amended above quoted is aptly expressed to meet just such a case, and, as has already been

said, if not intended to meet such a case it is surplusage and has no apparent application. We find nothing in the act to indicate that it was the legislative intent that the public administrator should pay, out of the compensation provided for him, the cost of running his office. The provision that he shall be compensated in part by fees, while once common enough, has of late fallen generally into disuse. It was probably inserted into the Bronx county act by inadvertence. In my opinion the board of estimate and apportionment had power to create the position held by the relator and to fix the salary thereof. If so, she was legally appointed and entitled to be paid. The order appealed from therefore should be affirmed, with $10 costs and disbursements.

INGRAHAM, P. J., concurs.

FISHER V. JOHNSON.

(Supreme Court, Special Term, Erie County. April 28, 1915.) 1. TRUSTS 371-SUIT AGAINST TRUSTEE-DESIGNATION OF DEFENDANT. In an action by a creditor of an insolvent to restrain payment to the other creditors of a fund alleged to have been placed in the hands of a trustee by the insolvent, where complaint was against such trustee as an individual, and the relief demanded was that he personally performed the duties of a trustee in respect to the fund, such complaint was demurrable; a cause of action against an individual as such being distinct from a cause of action against the same individual as trustee or representative.

[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 588-599; Dec. Dig. 371.]

2. TRUSTS

366-PARTIES DEFENDANT CREditor.

The insolvent was a necessary party to the action, since he had a right to be heard on the question of his liability to the plaintiff on the debt, while the other creditors had the right to have the same question litigated between the insolvent and the claimant.

[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 574-583; Dec. Dig. 366.]

3. JUDGMENT 670-PERSONS CONCLUDED-DIFFERENT CAPACITIES.

A suit against a defendant trustee as an individual does not bind him in his representative capacity, nor does judgment against a trustee as such conclude him in a subsequent action brought by or against him as an individual, although the issues in the two suits are identical, since a cause of action against an individual is distinct from a cause of action against such individual as trustee or other representative.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1181, 1185; Dec. Dig. 670.]

4. CREDITORS' SUIT 39-EXHAUSTION OF LEGAL REMEDIES-NECESSITY. In an action by a creditor of an insolvent against one with whom such insolvent was alleged to have deposited a sum of money for distribution among his other creditors, where there was no allegation in the complaint that plaintiff had exhausted his legal remedies and reduced his claim to judgment, such complaint was demurrable, since a creditor cannot reach the assets of his debtor in equity without first exhausting his remedies at law.

[Ed. Note. Dec. Dig.

For other cases, see Creditors' Suit, Cent. Dig. §§ 154-164; 39.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ALLEGA TION OF

5. CREDITORS' SUIT 39 - SUIT TO ENJOIN PREFERENCE FRAUD-NECESSITY. In a suit by a creditor of an insolvent against one alleged to hold astrustee moneys paid to him by such insolvent for distribution pro rata among his other creditors, such suit being to enjoin the payment and to determine the validity of plaintiff's claim, where the complaint alleged no fraud on the part of the insolvent, it was demurrable, since an insolvent has the right to prefer a creditor, in the absence of bankruptcy proceedings.

[Ed. Note.-For other cases, see Creditors' Suit, Cent. Dig. §§ 154-164; Dec. Dig.

39.]

Suit by Louis F. Fisher against John Johnson. Defendant's demurrer to the complaint sustained.

Bartholomew & Bartholomew, of Buffalo, for plaintiff.

Kenefick, Cooke, Mitchell & Bass, of Buffalo, for defendant.

WOODWARD, J. The complaint alleges that one George H. Youngmann, a former partner of the plaintiff, is indebted to the plaintiff in the sum of $14,000 or more, which amount is due from said Youngmann. It further alleges that subsequent to the time of the creation of the indebtedness the said Youngmann entered into business in the city of Buffalo, and in the month of October, 1914, said Youngmann became insolvent and entered into an arrangement with some of his creditors, under which the stock of goods in Youngmann's store were "sold by the defendant John Johnson, as trustee for said creditors, and that the said defendant John Johnson was to and did. receive therefor in cash the sum of $5,500; the said sum so realized upon the sale of said goods, to wit, $5,500, to be distributed pro rata by the defendant among the creditors of the said Youngmann in order to avoid liquidation in bankruptcy"; that the plaintiff was not advised of this meeting of creditors, nor of the proposed sale, until about October 22, 1914, when he was served with a notice under the statute in relation to bulk sales; that the plaintiff immediately gave notice of his relations to Youngmann as a creditor, and gave his consent to such sale upon condition that the defendant would hold said moneys in trust and distribute them pro rata among all of said Youngmann's creditors; that defendant then informed plaintiff that he would hold said moneys, and would not pay them over to said Youngmann, and would distribute them pro rata among Youngmann's creditors; that defendant advised plaintiff to put in his claim, that this was done, and that the defendant has failed to allow the claim, or to pay the same; that plaintiff then attempted to procure the co-operation of sufficient creditors to institute an involuntary bankruptcy proceeding, but that he has been unable to find two other creditors to join with him, it being alleged that this result is due to an agreement between the other creditors not to join in such a proceeding; that the defendant "holds and has in his possession said sum of $5,500 due the said George H. Youngmann upon the sale of said goods, wares, and merchandise; that by reason of the fact that the said George H. Youngmann has no other property of any name or nature, and is insolvent, and his creditors are far in excess of said sum of $5,500, and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 152 N.Y.S.-60

has entered into said agreement, and the whole of said sales price and said sum has been assigned as aforesaid, and is due to the creditors of the said George H. Youngmann, of which the plaintiff is one; that the defendant holds said sum and refuses to recognize the validity of the claim of the plaintiff against said Youngmann, and refuses to consider the plaintiff a creditor of the said Youngmann, and threatens to make distribution among the creditors of George H. Youngmann to the exclusion of this plaintiff."

The above is the actionable portion of the complaint, and is followed by an allegation, which is, of course, a conclusion of law, that the "plaintiff has no adequate remedy at law," and that "plaintiff will suffer irreparable injury and substantial damage unless the relief asked for in this complaint is granted," and in connection with this, by way of explanation, it is alleged that "if plaintiff first proceeds, in an action at law, to place said claim against said Youngmann into judgment, there is danger that said sum be distributed among the creditors of said Youngmann to the exclusion of plaintiff, and it will then become necessary for plaintiff to commence many and divers separate actions against each of said creditors to recover back the moneys so distributed in which plaintiff is entitled to share." The relief demanded is an injunction to restrain the defendant from distributing any part or portion of the fund "until the claim of the plaintiff as a creditor against said George H. Youngmann is lawfully determined, and that this court determine the validity of the claim of plaintiff against the said Youngmann, and of all other claims of creditors and alleged creditors against the said Youngmann, and that, said claims having been determined, the defendant be directed to pay the same over to the creditors pro rata."

The defendant demurs to the complaint upon the grounds that it appears upon the face of the complaint that there is a defect of parties defendant, in the omission of George H. Youngmann therein mentioned, and John Johnson, as trustee, therein mentioned, and upon the further ground that it appears upon the face thereof that the complaint does not state facts sufficient to constitute a cause of action.

[1, 2] It seems entirely clear that this demurrer must be sustained. The fund is alleged to have come into the possession of John Johnson as trustee, yet the action is brought against John Johnson individually, and the relief demanded is that the said John Johnson personally shall perform the duties of a trustee in respect to this fund. John Johnson personally is not alleged to have received this fund. The allegation is that he received it as trustee, and yet he is asked to account for it personally, while John Johnson, as trustee, is not before the court. Clearly, too, it is necessary to a disposition of this case. that George H. Youngmann should be a party. He has a right to be heard on the question of his liability to the plaintiff for $14,000, or any other sum. Assuming that this action could be maintained by a mere general creditor, the other creditors would have a right to have the question litigated between the plaintiff and Mr. Youngmann, and a court of equity would not proceed to judgment without his pres

ence.