YOUNG v. MERCANTILE TRUST CO.

YOUNG v. MERCANTILE TRUST CO. (Circuit Court of Appeals, Second Circuit. May 2, 1906.) No. 246. Trusts — Jurisdiction of Equity to Enforce — Sufficiency of Allegations. A bill for an accounting, which alleges that complainant delivered securities to defendant as trustee and depositary, to hold and thereafter deliver and distribute the same as directed by complainant, but which does not set out such terms and conditions of the deposit as to render it inconsistent with a mere bailment, does not show such an express or implied trust relation between the parties as to confer jurisdiction upon a federal court -of equity. FEd. Note.- -For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 425, 580.] Appeal from the Circuit Court of the United States for the Southern District of New York. For opinion below on demurrer to bill, see 140 Fed. 61. The following is the opinion below of Holt, District Judge, on demurrer to the amended bill: In my opinion, the ground of action alleged in the amended bill does not differ in any essential respect from that alleged in the original bill. The amended bill alleges that (he defendant has delivered to the vendors of the property sold the portion of the securities to which they were entitled. The remaining securities, therefore, are the property of the complainant, and in my opinion are held by the defendant as a mere depositary or bailee, and the complainant has a complete remedy by an action at law to enforce his rights to his property. I concur in the opinion of Judge Hazel that, under the authorities, and particularly under the statute providing that in the federal courts equity has no jurisdiction when there is an adequate remedy at law, this hill cannot be maintained. The demurrer is sustained, and, as the complainant has already once amended the complaint in order to meet the precise objection, I think that dual judgment should be ordered in the defendant’s favor on the demurrer. Dittenhoefer, Gerber & James (A. J. Dittenhoefer and David Gerber, of counsel), for complainant. Alexander & Colby (William F. Goldbeck, of counsel), for defendant. Before LACOMBE and COXE, Circuit Judges, and THOMAS, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. Decree of Circuit Court affirmed, upon the two opinions in Circuit Court.