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FIRST DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

support thereof. The assessment was confirmed at $905,000, and on the 14th day of July, 1899, a writ of certiorari was issued to review the action of the commissioners.

The controversy turns upon the sufficiency of the application above set forth.

Charles A. Collin, for the appellant.

George S. Coleman, for the respondents.

a

Hatcu, J.:

There is not only a division in this court upon the question presented by this appeal, but the opinions and decisions which have been delivered from time to time respecting the subject-matter are not easy of reconciliation either in this court or in the Court of Appeals. I am not able to see any substantial difference between the application of the appellant to the commissioners of taxes and assessments for a reduction of its assessment in this case and the application which was considered in People ex rel. Broadway Improvement Co. v. Barker (14 App. Div. 412), and in People ex rel. Sutphen v. Feitner (45 id. 542). The doctrine of the last case, however, was applied in People ex rel. Zollikoffer v. Feitner (63 id. 615), and this case upon appeal to the Court of Appeals was affirmed without opinion (168 N. Y. 674). The distinction between the application in the Zollikoffer case and in the Sutphen case is not apparent, and as the Court of Appeals affirmed the holding in the former case, it

, would seem to follow that the Sutphen case was correctly decided. Such was the view of this court, as expressed in People ex rel. Greenwood v. Feitner (77 App. Div. 428). In People

In People ex rel. Bronx Gas Co. v. Feitner (43 id. 198), the application was held to be good, although its terms were scarcely broader than in the Sutphen case It was in one aspect, however, distinguishable therefrom, as is pointed out in the opinion in the latter case, and also by the learned court below in its decision in the present case. In People ex rel. Broadway Realty Co. v. Feitner (61 App. Div. 156) the application is in substance, and almost in language, like the application in the present case. Therein this court held that such application was sufficiently broad to present to the commissioners the questions of overvaluation and inequality. Upon appeal to the Court of Appeals

FIRST DEPARTMENT, JULY TERM, 1903.

App. Div.]

the order was affirmed on the prevailing opinion delivered in this court (168 N. Y. 661). The question, therefore, presented by this appeal is no longer one of construction of the statute (Laws of 1897, chap. 378, §§ 895, 906) and of the application thereunder, but has become one of authority. As the last decision of the Court of Appeals, involving the question now before us, upheld and sustained the application as being sufficient to raise the questions of overvaluation and inequality of the assessment, we must now hold that the present application, which is in substance the same as was considered in the last decision, is also sufficient in statement.

It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and that a rehearing be had under the writ.

O'BRIEN, INGRAHAM and MCLAUGHLIN, JJ., concurred; VAN BRUNT, P. J., dissented.

Order reversed, with ten dollars costs and disbursements, and rehearing ordered.

APP. DIV.-VOL. LXXXVI. 4

Cases

DETERMINED IN THE

FOURTH DEPARTMENT

IN THE

APPELLATE DIVISION,

July, 1903.

In the Matter of the Guardianship of MABEL FARDETTE, an Infant, Respondent, v. UNITED STATES FIDELITY AND GUARANTY COмPANY OF BALTIMORE, MARYLAND, Appellant.

A surety company's liability on a guardian's bond for money of the infant left in the guardian's possession at the time of his appointment.

Prior to January 1, 1902, a firm of attorneys, composed of William F. Hodge and Robert H. Slocum, recovered, on behalf of an infant client, a judgment for $5,502.76, which amount they deposited on January 2, 1902, in the name of Hodge & Slocum. On the same day Slocum drew from the bank the sum of $3,347.61 which he claimed was due to his firm for services rendered in the action, leaving in the bank a balance of $2,311.04 which concededly belonged to the infant client.

January seventh Slocum prepared a petition for his appointment as general guardian of the infant, which petition recited that the infant was possessed of $2,311.04, which was in the hands of Hodge & Slocum. January ninth the petition, and a bond for twice the sum mentioned in the petition, were filed with the surrogate, and letters of guardianship were issued to Slocum. The day prior to the issuing of the letters of guardianship Slocum withdrew from the bank by check $1,390 of the infant's funds, but it did not appear that he did not have on hand, at the time the letters of guardianship were issued, the entire sum of $2,311.04 belonging to the infant. Slocum subsequently absconded with almost all of the infant's funds.

Held, that, under section 2596 of the Code of Civil Procedure, providing, “A person to whom letters are issued is liable for money or other personal property of the estate which was in his hands or under his control when his letters were issued, in whatever capacity it was received by him or came under his control," the surety was liable for the moneys withdrawn by Slocum from the bank on the day before the letters of guardianship were issued.

FOURTH DEPARTMENT, JULY TERM, 1903.

App. Div.]

APPEAL by the United States Fidelity and Guaranty Company of Baltimore, Maryland, surety upon the official bond of Robert H. Slocum as general guardian of Mabel Fardette, an infant, from a decree of the Surrogate's Court of Onondaga county, bearing date the 16th day of January, 1903, and entered in said Surrogate's Court, upon a final accounting of the proceedings of said general guardian, in and by which it was adjudged that said Slocum had in his hands, unexpended and unadministered, of money received by him as such general guardian, the sum of $1,970.42, and that said sum be paid by him to Frank Fardette, his successor as general guardian of said infant.

Thomas Hogan, for the appellant.

Ray B. Smith, for the respondent.

MCLENNAN, J.:

On the 9th day of January, 1902, Robert H. Slocum was duly appointed general guardian of the infant Mabel Fardette by decree of the Surrogate's Court of Onondaga county. On that day he filed his official bond as such guardian in the penal sum of $4,622.08, executed by himself as principal and the appellant as surety. Also, his consent to act as such guardian and his oath of office. There upon letters of guardianship were duly issued to him, and he continued to act as such guardian until October 20, 1902. On said lastmentioned day said letters were revoked upon the ground that Slocum had absconded from the State, and that his whereabouts could not be ascertained. In the decree so revoking his guardianship it was ordered that he make and file his account as general guardian of Mabel Fardette, and one Frank Fardette was appointed general guardian of said infant in his place. Slocum failed to make and file his account as directed; the appellant, the surety on his bond, appeared; several hearings were had, and proofs were taken tending to establish the amount of money and property of said infant received by Slocum as general guardian, for which he was liable. Upon the conclusion of such hearings the decree was entered which is appealed from.

It appears that prior to January 1, 1902, the infant, by her guardian ad litem, recovered a judgment against the New York

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86. Central and Hudson River Railroad Company for damages on account of personal injuries received by her in the sum of $10,000. The firm of Hodge & Slocum, composed of William F. Hodge and Robert H. Slocum, were the attorneys for the plaintiff in that action, and it appears that Slocum had entire charge of the conduct of the case. Upon appeal the judgment was reduced to $5,000, and on the 1st day of January, 1902, that sum was paid to Slocum, together with the costs, amounting in the aggregate to $5,502.76, and that amount was deposited in the Commercial Bank of Syracuse on January 2, 1902, in the name of Hodge & Slocum. On the same day Slocum drew out of the bank by check the sum of $3,347.61, which he claimed was the amount which was due and owing to his firm of said judgment, for their services rendered in said action. That was the entire sum claimed by said firm for their services, leaving in the bank a balance which with interest amounted to $2,311.04, and which concededly belonged to their infant client. Four days after and on the 6th day of January, 1902, the infant was notified of the payment of the judgment, and Slocum urged her to permit him to be appointed her general guardian, which she consented to do. On the following day, January seventh, Slocum prepared her petition for his appointment as general guardian. The petition recited that she, the infant, was possessed of said sum of $2,311.04, in the hands of Hodge & Slocum, which represented the balance due the petitioner of the proceeds of the judgment recovered by her against the New York Central and Hudson River Railroad Company, which had been paid to Hodge & Slocum. On the following day, January 8, 1902, the official bond of Slocum, as general guardian, was executed in the penal sum of $4,622.08, being exactly twice the sum mentioned in the petition, and the appellant, the United States Fidelity and Guaranty Company, became his surety, and on the following day, January ninth, the petition and bond were filed with the surrogate, and letters of guardianship were issued to Slocum.

It appears that on the 7th day of January, 1902, just two days before the letters of guardianship was issued, the infant asked Slocum for some money, and he advanced to her $15, stating, however, that he did so personally, he not yet having been appointed her guardian. On the following day, January eighth, she obtained a

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