debts. Subsequently plaintiff made a general assignment to his father for the benefit of creditors. On the death of the father, plaintiff brought suit against the next of kin and executors, to recover possession of the books. Beld, that an order made therein, giving plaintiff the absolute and unrestricted custody of the books, should be modified so as to have them placed in the custody of some person, where both parties could have access to them.
Appeal from special term, Westchester county.
Action by Benjamin T. Davis against Jemima S. Davis, individually, Bebecca D. McKay, and Jemima S. Dávis, and William W. Ambler as executors of Gilbert T. Davis, to recover possession of the books of account of the late firm of Davis & Co., composed of plaintiff and his father, said Gilbert T. • Davis. The partnership was dissolved by mutual consent, and it was agreed that deceased should retain the books, collect the accounts, and pay the debts of the firm. Subsequently plaintiff made a general assignment to his father for the payment of debts. The court made an order directing defendants to deliver possession of the books to plaintiff, and they now appeal therefrom.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.Henry C. Griffin, for appellant. Edward T. Lovatt, for respondent.
It is very doubtful if the plaintiff has any right, title, or interest in the books in question. In any view, however, he ought not to have the absolute and unrestricted custody of them. As matter of law, the interest in the accounts passed toG. T. Davis in his'life-time, in trust to pay debts, and the plaintiff only retained an equitable interest therein. We think it was proper to give the plaintiff access to the books; at the same time,'also, the defendant should have been allowed to have the books where they could be used in furtherance of the trust, and in settlement of the estate of G. T. Davis, deceased. The order should be so modified as to have them placed in the custody of some officer or person where both parties can have access to them at all reasonable times. Ko costs to either party. All concur.