Miami Valley Gas & Fuel Co. v. Mills — 216 N.Y. 687

Majority

p. 687

Miami Valley Gas and Fuel Company, Appellant and Respondent, v. John T. Mills, Individually and as Trustee, Respondent and Appellant.

Headnote

Miami Valley Gas &Fuel Co. v. Mills, 157 App. Div. 542 , modified.

(Argued October 20, 1915;

decided November 16, 1915.)

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 26, 1913, modifying and affirming as modified a judgment in favor of defendant

p. 688

entered upon a decision of the court on trial at Special Term in an action brought to compel the defendant, as trustee under a mortgage made by plaintiff, to satisfy the mortgage and account for, pay over and deliver to plaintiff all sums of money and all property received by him as such trustee, with interest, less such sums as said defendant might have lawfully expended or be entitled to retain as expenses and disbursements sustained or incurred in the execution of the trust.

Graham Sumner tor plaintiff, appellant and respondent.

David Leventritt and Seth B. Robinson for defendant, respondent and appellant.

Judgment modified so as to provide that the plaintiff is entitled to judgment against defendant for $101,559.81, less the sum of $2,000 allowed for compensation and attorneys’ services, leaving a balance of $99,559.81 and interest on said sum from April 27, 1910, at six per cent per annum, and as thus modified affirmed, without costs in this court to either party; no opinion.

Concur: Willard Bartlett, COh. J., Hiscock, Collin, Hogan, Cardozo, Seabury and Pound, JJ.