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Riche v. Greenwich Bank

140 N.Y.S. 122 Court N.Y. App. Div. Decision date 1913-02-07 English

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p. 122
RICHE et al. v. GREENWICH BANK OF CITY OF NEW YORK.
(Supreme Court Appellate Division, Second Department
February 7, 1913.)

Headnote

Trusts (§ 365*)—Enforcement—Time to Sue.
Where a creditor of a bankrupt contractor, having claims provable in bankruptcy, agreed with creditors having liens on sums to be earned under the bankrupt’s contract for public work to complete the contract in consideration of the release of the liens and distribute the surplus, except a percentage specially reserved, the creditor’s obligation to account matured before the payment of the percentage" reserved, and an equitable proceeding charging conversion, waste, and improvidence was not premature merely because the percentage reserved had not been paid.
[Ed. Note.—For other cases, see Trusts, Cent Dig. §§ 568-573; Dec. Dig. § 365.*]
*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
On reargument. Judgment reversed, and new trial granted.
For former opinion, see 153 App. Div. 425 , 138'N. Y. Supp. 432.
Argued before JENKS, P. J., and BURR, THOMAS, CARR, and WOODWARD, JJ.

Upon the reargument it appears that the defendant agreed to account upon the completion of the contract and receipt of final moneys due thereupon “except the 5% specially reserved.” Accordingly, the action is not premature. Therefore the judgment should be reversed and a new trial granted, costs to abide the final award of costs.

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