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Daniel Seymour, (H. Parsons, of counsel,) for appellant.

Butler, Stillman & Hubbard, (John Notman, of counsel,) for respondent.

VAN BRUNT, P. J. The facts established upon the trial were that on the 1st of November, 1886, one Sidney T. Smith, as ancillary administrator of the estate of one Caroline G. Smith, applied for a loan of $600 from the defendant, the Second National Bank, stating to its president that he wanted the money for the purposes of the estate, in anticipation of income. The bank made the loan, and it was credited to the account of the ancillary administrator. He delivered a promissory note therefor, together with a New York 7 per cent. accumulated debt bond, for $5,000, which stood in the name of, and formed part of the assets of, said Caroline G. Smith. The said bond and note ave been in the possession of the bank ever since, and no part of the note has been paid, although payment has been demanded. The whole amount of the note was paid to the ancillary administrator, on checks drawn by him as such administrator, in the ordinary course of business, from time to time. The bank subsequently attempted to collect this bond from the city of New York, but its transfer had been stopped by the plaintiff, who had been appointed ancillary administrator in the place and stead of said Sidney T. Smith. The bank subsequently attempted to sell the bond at public auction, on notice to plaintiff, but was enjoined by temporary injunction in this action, which was brought to compel the delivery of the bond in question. At the close of the trial the appellant moved that the court direct judgment for the delivery of the bond, which was denied; and upon motion of the defendant's counsel the complaint was dismissed, and from the judgment thereupon entered this appeal is taken.

The sole question involved in this appeal is as to the right of an ancillary administrator to pledge any portion of the assets of the estate which may come into his hands. In the case of Hopper v. Hopper, 53 Hun, 394, 6 N. Y. Supp. 271, decided by the general term of the second department, such right seems to have been recog. nized, although not necessary to the decision of the case; it having been determined in that case that an ancillary administration is as efficacious as any other administration, so far as the question of legal title is concerned, the fact that the administration is ancillary only going to the discretion of the court in the disposition of the assets. The question involved in that case, however, was simply whether an executor who receives ancillary letters in this state is liable to be sued here in the same manner as other executors, whether he has assets of the estate in his hands or not. In the case at bar, we think an entirely different question is involved, and that consideration of sections 2700 and 2701 of the Code of Civil Procedure shows that the rights of an ancillary administrator in reference to the estate which comes into his hands are very different from those which belong to an administrator, or executor of a will proved within this state. Sections 2700 and 2701 are as follows:

"Sec. 2700. The person to whom ancillary letters are issued, as prescribed in this article, wust, unless otherwise directed in the decree awarding the letters, or in a decree made upon an accounting, or by an order of the surrogate. made during the administration of the estate, or by the judgment or order of a court of record in an action to which that person is a party, transmit the money and other personal property of the decedent received by him after the letters are issued, or then in his hands in another capacity, to the state, territory, or country where the principal letters were granted, to be disposed of pursuant to the laws thereof. Money or other property so transmitted by him at any time before he is so directed to retain it, must be allowed to him upon an accounting. Sec. 2701. The surrogate's court, or any court of the state which has jurisdiction of an action to procure an accounting, or a judgment construing the will, may, in a proper case, by its judgment or decree, direct a person to whom ancillary letters are issued as prescribed in this article to pay out of the money or avails of the property received by him under the ancillary letters, and with which he is chargeable upon his accounting, the debts of the decedent due to creditors residing within the state, or, if the amount of all the decedent's debts, here and elsewhere, exceeds the amount of all the decedent's personal property applicable thereto, to pay such a sum to each creditor residing within the state, as equals that creditor's share of all the distributable assets, or to distribute the same among leg. a tees or next of lin, or otherwise dispose of the same as justice requires."

It appears, therefore, by section 2700, that there is only one duty which an ancillary administrator is to perform, viz. that he must, unless otherwise directed in the manner provided for in the section, transmit the money and other personal property of the decedent, received by him after the letters are issued, or then in his hands in another capacity, to the state, territory, or country where the principal letters were granted, to be disposed of according to the laws thereof. This is his first and primary duty, and the provision is mandatory. He must transmit the same, unless otherwise directed in the decree awarding the letters, or in a decree made upon an accounting, or by an order of the surrogate, made during the administration of the estate, or by the judgment or order of a court of record in an action in which the ancillary administrator is a party. Then, by section 2701, power is given to the surrogate's court, or any court of the state which has jurisdiction of an action to procure an accounting, or a judgment construing a will, by its judgment or decree, to direct the person to whom the ancillary letters are issued to pay out of the money or avails of the property received by him under the ancillary letters, and with which he is chargeable upon his accounting, the debts of the decedent due to creditors residing within this state; and that is all. Having done that, section 2700 becomes operative again, and he is bound to transmit the balance, if any, to the state, territory, or country where the principal letters were granted, to be disposed of pursuant to the laws thereof. But it is said that section 2702 enlarges the rights and duties of ancillary adminis. trators, in that it expressly provides that the provisions relating to the rights, powers, duties, and liabilities of an executor or administrator apply to a person to whom ancillary letters are granted, except those contained in the fifth title of the chapter, (which relates to distribution by principal, executor, or administrator,) and except where special provision is otherwise made in the article, or

where a contrary intent is expressed in, or plainly to be inferred from, the text. It is plain that it was not the intention, by section 2702, to repeal any of the restrictions or requirements contained in sections 2700, 2701; and, reading all these sections together, it seems to be apparent that the only duty of the ancillary administrator is to transmit the estate, unless he is directed, by express 'decree, to retain some portion of the same for the purpose of payment of debts due to resident creditors. In the case at bar, the ancillary administrator obtained this loan, as he stated to the president of the defendant, in anticipation of income. It is difficult to see how, either for the purpose of transmission, or even for the payment of debts, the administrator could possibly have any occasion to anticipate income. It would seem, therefore, to be apparent that the loan was required for some purpose other than connected with the administration of the estate, so far as the ancillary administrator wis aitlicrized in administer the same. This being the case, we do not think that the defendant was a bona fide holder of the bond, so as to be protected. The judgment should be reversed, and a new trial ordered, with costs to appellant, to abide the event. All concur.

(70 Hun, 374.)
DODE V. MANHATTAN RY. CO. et al.

(Supreme Court, General Term, First Department. June 30, 1993.) 1. Extra ALLOWANCE—AMOUNT IN CONTROVERSY.

Where the operation of defendants' elevated railroad enjoined unless they pay a certain sum as "fee damages" to plaintiff's lot, such sum represents “the value of the subject-matter involved," on which Code

Civil Proc. § 3253, provides that an extra allowance may be computed. 2. SAME-DIFFICULT AND EXTRAORDINARY CASE-CERTIFICATE OF REFEREE.

On a motion in a case tried before a referee for an extra allowance on the ground that the case was “difficult and extraordinary," (Code Civil Proc. $ 3253,) the referee's certificate of that fact should be produced by the moving jarty, but the absence of such certificate does not deprive the court of power to consider the motion.

Appeal from special term, New York county.

Action by Dirck Dode against the Manhattan Railway Company and the New York Elevated Railroad Company to restrain the operation and maintenance of defendants' elevated railroad in front of plaintiff's property known as “No. 549 Third Avenue," and for rental damages. From an crder granting plaintiff an extra allowance of $56, and from an order denying defendants' motion to resettle the order granting the extra allowance, defendants appeal. Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Davies, Short & Townsend, (Herbert Barry and Julien T. Davies, of counsel,) for appellants.

John A. Weekes, Jr., and Henry A. Forster, for respondent.

PER CURIAM. This action was brought to recover the damages sustained by an abutting owner occasioned by the construction and operation of the defendants' railroad in one of the streets of this city. It was tried before a referee, who found that the damages sustained by the plaintiff by the operation of the road from the time it was built to the date of the trial of the action were $336.76, and that the injury sustained by the plaintiff by the taking of the easements—usually termed "fee damages”-amounted to $800. The plaintiff moved for an additional allowance, and 5 per cent. was granted. The defendants insist that the court erred in granting an additional allowance upon the amount of the so-called “fee damages.” The Code provides (section 3393) that an allowance may be made "upon the sum recovered or claimed, or the value of the subject matter involved." The $800 does not represent a sum absolutely recovered by the plaintiff. It was payable at the election of the defendants. But the injury to the plaintiff's easements was a part of the subject-matter involved in the action, and, the damages occasioned by the injury to those easements having been assessed at the sum of $800, we think that that amount represents the value of the subject matter involved, and that the court might grant an additional allowance upon that sum. Lattimer v. Livermore, 72 N. Y. 175; Johnson v. Association, 122 N. Y. 330, 25 N. E. Rep. 484.

Upon the motion made for an additional allowance the plaintiff failed to produce a certificate of the referee that the case was "difficult and extraordinary." It is usual, and we regard it as the better practice, not to grant an additional allowance without a certificate of the referee who tried the cause; but the absence of it is not jurisdictional, and does not deprive the court of the power to consider the motion, and determine for itself whether the case falls within the language of the Code. It is not recited in the order granting the additional allowance that the referee's report was read upon the motion, and the defendants insist that it was orally agreed on the hearing that the plaintiff had applied for a certificate from the referee, which had been refused. The defendants moved for a resettlement of the order by having inserted therein the fact that it was agreed upon the argument that the referee had refused a certificate on the application of the plaintiff, and that his report was read on the motion, which was refused.

The report of the referee is a part of the record presented upon this appeal, and it must be presumed that it was used upon the motion, and so both parties got the same benefit from it as though it had been recited in the order that it was so used. The court had the right to determine for itself whether or not it was agreed upon the hearing of the motion that a certificate of the referee had been applied for and refused. It may be that the attention of the court was not called to the statement. Had the parties desired to make this fact a part of the record, either they should have filed a stipulation or else the party desiring to have it appear should have presented an affidavit on the hearing of the motion stating the fact. We

think no error was committed in refusing to resettle the order, and, under the view we have taken of the case, a resetilement of it would not have affected the rights of the defendants. The orders should be affirmed, with $10 costs and printing disbursements.

(70 Hun, 257.) KENNEDY V. KENNEDY et al.

(Supreme Court, General Term, First Department. June 30, 1893.) PRELIMINARY INJUNCTION-RESTRAINING TRANSFER OF BONDS.

Plaintiff and others deposited the bonds of a railroad company with defendants under a contract by which defendants were to hold the bonds as security for the expenses of reorganizing the railroad company, and any bond owner was to have the right to withdraw his bonds on paying his proportionate share of the expenses then accrued. Held, in an action to recover bonds so deposited, where the amount of the expenses chargeable against them was disputed, that plaintiff was entitled to an injunction pendente lite against the sale of plaintiff's bonds by defendants. Appeal from special term, New York county.

Action by H. Van Rensselaer Kennedy against Miffin Kennedy, Frederick P. Olcott, Joseph Wharton, Henry Budge, Frederic Cromwell, J. Kennedy Tod, Alfred S. Heidelbach, Eric P. Swenson, and the Central Trust Company of New York. From an order denying a motion to continue a preliminary injunction, provided defendants execute an undertaking in the sum of $10,000 as security for the payment of such damages as plaintiff may sustain, plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.

Charles J. Hardy, (George Zabriskie, of counsel,) for appellant.

Butler, Stillman & Hubbard, (William Allen Butler and Wil. helmus Mynderse, of counsel,) for respondents.

FOLLETT, J. The San Antonio & Aransas Pass Railway Company is a corporation of the state of Texas. On July 1, 1886, the corporation mortgaged its property to a trustee to secure the pay. ment of 10,000 bonds of the denomination of $1,000 each, with interest at 6 per cent. per annum, payable on the 1st days of January and July in every year until July 1, 1936, when the principal becomes due. The plaintiff is the owner of 120 of these bonds. In July, 1890, the corporation made default in the payment of part of the interest on these bonds, and has paid none of the interest which has become due since July 1, 1890. In the month last mentioned a receiver was appointed for the corporation on a judgment which is asserted to be a lien prior to the mortgage. On the 2d day of March, 1891, a contract was entered into between Mifflin Kennedy, party of the first part, and such of the share and bond holders of the corporation as should join therein and comply with its terms, as party of the second part, and Frederick P. Olcott, Joseph Wharton, Henry Budge, Frederic Cromwell, J. Ken.

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