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App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1903.

check for $75, and on the following day she received a check for $315. It also appears that on that day she signed a receipt for $750, but testified that she received no money represented by such receipt; that she did not know she had signed the same, and the evidence tends to show that her signature was procured to the same by means of fraud. In April, 1902, the infant received a check from Slocum for $50, making a total of $455, the amount received by her from him.

On the 9th day of January, 1902, after Slocum had been appointed general guardian, he stated to the infant in the presence of witnesses that he had $2,311.04 of her money in his hands, and, deducting the $455 which had been paid by Slocum to the infant, there remained in his hands $1,856.04, which with the interest added makes the amount directed to be paid by the surrogate in the decree appealed from.

From the statement made thus far there would seem to be no possible question about the correctness of the surrogate's decree which is appealed from. It is claimed by the appellant, however, that the amount ordered paid by Slocum in the decree should first be reduced by $750, because of an agreement alleged to have been made by one Fohs, with whom the infant was living before the action against the railroad was brought, and Slocum, by which Fols was to have a certain amount of the recovery, but it appears that the infant never knew anything about such agreement; that no money was advanced to her by Fohs, and that she never gave any order upon Slocum for the payment of the money to Fohs. There was no agreement between the infant or her guardian ad litem as to the compensation of Hodge & Slocum, and it appears that of the amount paid by the railroad company that firm took over $3,000, apparently without right; certainly without any agreement to justify the taking of such amount of compensation.

It is claimed that pursuant to the agreement between Fohs and Slocum, Slocum paid to Fohs $515, but we think there was no evidence which would justify the surrogate in deducting from the guardian's account such sum. The money was not expended by the guardian on account of or for the benefit of the infant, and if expended at all, was in payment of the guardian's personal obligation.

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

It is also urged by the appellant that the following sums, to wit, $1,000, $390 and $75, should be deducted from the guardian's account as against the appellant, because those sums were drawn out of the bank by check on the day previous to the issuing of the letters of guardianship. In other words, it is contended that these sums were converted by the guardian Slocum to his own use on the day before the appellant became obligated upon his bond. The payment of $75, which was concededly paid to the infant, is allowed in the account. The other two items are disallowed, and it seems to us correctly, because there is no proof showing or tending to show that the moneys represented by such checks had been converted by the guardian prior to the execution of the bond by the appellant. It is entirely immaterial whether the money belonging to the infant was in the bank to the credit of Hodge & Slocum, her attorneys, or whether it was in the pocket of Slocum, who afterwards became her general guardian. The petition upon which the order was made and which was the basis of the proceeding leading to the execution of the bond in question, recited that the guardian Slocum had such amount of money which belonged to and was the property of the infant. It cannot be presumed - there is certainly no proof to establish the fact that Slocum converted the money to his own use prior to the time when the bond of the appellant was executed; but if such misappropriation took place on the day immediately following his appointment as general guardian, it is clear that it was made in contemplation of such appointment, and, therefore, is covered by section 2596 of the Code of Civil Procedure, which provides: "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 case of Matter of Noll (10 App. Div. 356; affd., 154 N. Y. 765) is decisive of this question. In that case the court said: "But where the obligation as administrator to pay, and the right and duty to receive as guardian, are united in the same person, as in the present case, he becomes charged in the latter capacity. This was the situation that arose when the surrogate's decree was perfected. And it is no objection available to the sureties on his official bond as guardian for them to allege that prior to that time or to the

FOURTH DEPARTMENT, JULY TERM, 1903.

App. Div.]

time of his appointment as guardian, he had misappropriated and converted to his own use the fund which came to him as administrator, and to which his wards were entitled. As he had received such fund and had not disposed of it in the administration of the estate, he, in legal contemplation, had it in his custody at the time the decree was made. And for the purpose of the effectiveness of the obligation assumed by the sureties in his official bond as guardian, his liability to account for it conclusively charges him with having the requisite fund."

As we have seen in the case at bar, there is not a scintilla of evidence to indicate that Slocum did not have, on the day when he was appointed general guardian of the infant and when the bond in question was executed, $2,311.04 of the infant's money. There is no proof tending to show that prior to that time he converted a dollar of it, and in fact the petition, as we have seen, asserted that that was the amount in his hands. Upon the accounting he was given credit for every dollar he had paid to or for the benefit of the infant. The balance which remained in his hands was the amount found by the surrogate, and we think that for the payment of such amount to the infant the appellant is clearly liable upon its bond. The decree of the Surrogate's Court should be affirmed, with costs to be paid by the appellant.

All concurred.

Decree of Surrogate's Court affirmed, with costs.

THE SOUTH BUFFALO RAILWAY COMPANY, Appellant, v. HENRY D. KIRKOVER and Others, Respondents.

Eminent domain- measure of damage where only a part of a tract of land is

taken.

Where a railroad company acquires, by condemnation proceedings, a portion of a tract of land for the purposes of its railroad, the owner is entitled to recover the market value of the portion actually taken by the railroad company, without any deduction on account of any actual or supposed benefits resulting to the remainder of the tract by reason of the construction and operation of the proposed railroad.

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86. In addition, the owner is entitled to recover any damages which will result to the portion of the tract not taken, as well by reason of the taking of the parcel acquired by the railroad company, as by reason of the use to which the portion taken will be put by the railroad company.

WILLIAMS, J., dissented.

APPEAL by the plaintiff, The South Buffalo Railway Company, from a final order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 16th day of June, 1902, as amended and resettled by an order entered in said clerk's office on the 1st day of July, 1902, confirming an award made by commissioners duly appointed in condemnation proceedings.

The proceeding was instituted by the appellant on the 8th day of November, 1900, to acquire a right of way upon which to construct its railroad over the premises of the respondents, situate near the southerly line of the city of Buffalo.

John G. Milburn, for the appellant.

Wilson S. Bissell and James McC. Mitchell, for the respondents. MCLENNAN, J.:

No question is presented for review except as to the amount of the award, and as to the reception by the commissioners of certain evidence which it is claimed was incompetent and was prejudicial to the appellant.

The report or award of the commissioners which assumed to fix the compensation to which the defendants are entitled, so far as it is important to note, is as follows:

"To Henry D. Kirkover and Emma J. Kirkover, his wife, and Henry Koons, as and for compensation for the lands and premises aforesaid which are actually taken in this action or proceeding, the sum of ten thousand five hundred dollars ($10,500.00), and as compensation for the damages to the remainder of the parcel of land owned by said defendants out of which the lands and premises described in said petition and order are taken, excluding therefrom, however, by consent of counsel for defendants, such portion of said lands as lie* to the north and east of the right of way and lands.

App. Div.]
FOURTH DEPARTMENT, JULY TERM, 1903.

and tracks of the Buffalo, Rochester & Pittsburg Railway Company, as shown upon the maps and exhibits offered and received in evidence, caused by the taking of the parcel of land described in this proceeding and the use thereof for railroad purposes, in the manner and to the extent shown by the evidence and proceedings aforesaid, the sum of forty-one thousand five hundred dollars ($41,500.00), making a total appraisal and award to said defendant land owners of the sum of fifty-two thousand dollars ($52,000), as the compensation which ought justly to be made by the plaintiff to the owners of the property appraised by your Commissioners herein. "At the request of counsel for the defendants, we do further separately report, that in fixing and determining such compensation and award, your Commissioners have taken into consideration the question whether the lands and premises of said defendants, not taken in this proceeding aforesaid, have been in any way damaged and depreciated in value by the construction and use and operation of the railroad of the plaintiff adjoining the lands of said defendants and beyond the boundary lines of the parcel taken herein, and they find and have determined that said lands and premises of said defendants not taken have not been, and will not be, in any way thereby damaged or depreciated; and at the request of counsel for plaintiff they have also taken into consideration the question as to whether any allowance or deduction should be made from said compensation on account of any real or supposed benefits which the defendant land owners have derived, or may derive, from the publie use for which the property aforesaid is taken, or the construction of any proposed improvement connected with such public use, and they find and have determined that no such allowance or deduction should be made on account thereof, because there are no such and will be no such real or supposed benefits derived by the land owners from such public use of the property taken, or the construction of any proposed improvement connected with such public use."

nine acres.

The premises in question consisted of a tract of vacant land situate in the southerly part of the city of Buffalo, comprising sixtyIt was bounded on the westerly side by the Western New York and Pennsylvania railway, New York, Chicago and St. Louis railway, Erie railroad and Lake Shore and Michigan Southern railroad, and on the easterly side by the Buffalo, Rochester

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