292; 2 Perry Trusts (6th ed.) § 851; Fish v. Miller, Hoffm. Ch. 267, 278; Nesbit v. Lockman, 34 N. Y. 167, 169-170; Adair v. Brimmer, 74 id. 539, 554; Wildey v. Robinson, 85 Hun, 362, 365; New York Life Ins. & Trust Co. v. Kane, 17 App. Div. 542, 548; Matter of Long Island Trust Co., 92 id. 1; affd., 179 N. Y. 520; Kissam v. Squires, 102 App. Div. 536, 543; Matter of MacNeil, 165 id. 842, 844; Matter of Brewster, 92 Misc. Rep. 339, 344; Harrison v. Harrison, L. R. A., 1916E, 854, note, p. 864.
Even from the executor's standpoint, and upon the undisputed evidence, the bargain in this case was the release of a liability for an illegal investment of $10,000, with accrued interest, in order to obviate the expenses of an accounting which would amount to only a few hundred dollars. The instrument in question was indorsed " Agreement and Inventory." While Mr. Ungrich himself was a layman, his counsel prepared the same. The objectors, while they were told that it was a general release, regarded it as a paper which it was necessary or expedient for them to sign in order to make it easy for the executor to continue 'the administration of the estate. Mr. Ungrich admitted that he knew that the effect of his nephew and nieces signing this instrument would be to relieve him from his obligation for this McNally investment but he did not say anything to them about the question of his personal liability as executor on account of that investment."That question did not come up at all." The objectors did not understand that the executor was liable, in all events, for this investment as being an investment inhibited by statute; they merely questioned whether it was a good investment. The executor, in order to sustain this release, was bound to show, either that he did not know his own liability and accordingly that he gave the best information which he had; or, knowing that he was liable, that he informed them as to such liability. He has proved neither. On
the contrary it affirmatively appears that he knew his liability, but did not disclose it. It is therefore entirely clear that the proofs fall short of showing that all was fair, open and well understood. The question is whether this so-called "agreement and inventory" should be disregarded because of constructive fraud as distinguished from actual fraud, and a decision in favor of the objectors will undoubtedly work great hardship against their uncle, who made the investment, now challenged, as the joint investment of himself and the objectors' own father. This hardship is aggravated by the fact that the objectors do not seek to surcharge their uncle merely for one-half of the investment, but for the full amount thereof, with accrued interest, as, under the authorities they apparently have the right to do. Wilmerding v. McKesson, 103 N. Y. 329. Considerations involving hardship, however, must give way before authoritative decisions based on questions of policy, defining the duties of a fiduciary in making contracts with beneficiaries. Indeed, the reasoning of these decisions apply with much greater force to a release than to a direct gift. In the latter case the ward knows precisely what he bestows. The bounty is open. In the former the benefit covertly given is unknown and uncertain. Fish v. Miller, supra. So, whatever my convictions as to the question of hardship, I am constrained to disregard the agreement and inventory as vitiated by legal or constructive fraud.
Finally, I am of the opinion that the evidence offered by the executor in the stipulation of April fourth cannot avail him upon this accounting. I shall, however, overrule the objection to it, so that it will constitute a part of the record and be available to the executor, for what it is worth, in reviewing my decis ion before the surrogate.
The objection is sustained.
A deed of trust provided that in case there should be no issue of the beneficiary living at the time of the disposition of the principal of the trust the principal should be paid over to the next of kin of the beneficiary. Held, that the adopted daughter of a deceased brother of the beneficiary was one of the next of kin of the bene- ficiary under the deed of trust and entitled to her share in the distribution of the fund — The words "next of kin" do not include a widow - Domestic Relations Law, § 114. United States Trust Co. of New York v. Hoyt, 663.
See Vendor and Purchaser. APPEAL.
Summary proceedings Order not appealable under Municipal Court Code, 154.- Under section 154 of the Municipal Court Code an order denying a landlord's motion for an order directing the clerk of the court to deliver the warrant in a summary proceed- ing, is not appealable. Tauszig v. Kantor, 366.
1. Unincorporated-Actions against Pleading - Injunctions When motion for judgment on the pleadings granted-Code Civ. Pro. 1919.- In an action brought under section 1919 of the Code of Civil Procedure against the president of an unincorporated asso- ciation on any cause of action upon which plaintiff may maintain such an action against all the associates, the court must find upon allegations and proof that all the members of the association are liable. Where in such an action brought against one individually and as president of the "Amalgamated Clothing Workers of America" and against others individually and as officers, agents or employees of the organization, the complaint alleges "that all of the defendants herein have combined and conspired and agreed to carry out all of the aforementioned purposes by their acts and conduct," and that they "are wrongfully and unlawfully instigating plaintiff's employees to cease work and have caused a general strike against manufacturers of clothing in the city of New York and are instigating persons to picket plaintiff's factories and coercing and intimidating plaintiff's employees," and a particular allegation of the pleading gives irrefutable evidence that the pleader intended the term "defendants" to apply to the persons actually named as such in the caption, in contra-distinction to the term "all members of the association and that when the pleader intended to designate the latter class he so expressly denominated them, but there is no allegation that all the members of the defendant association par- ticipated in alleged overt acts or purposes of the association, authorized or ratified the same or are chargeable with knowledge thereof, the complaint, considering the allegations thereof as though
they were all to be considered as bearing solely upon the right to an injunction, fails to state a cause of action and defendant's motion for judgment on the pleadings will be granted, with leave to plaintiff to plead over, if so advised. Friedman & Co., Inc., v. Amal. Cloth. Workers, 44.
2. Unincorporated-Ticker service When no action lies against an association for damages occasioned by its incorrect report of decision of United States Supreme Court on taxable status of stock dividends Libel.- While everyone is under moral obligation to say nothing that is not true, the law does not attempt to impose lia- bility for a violation of that duty, unless it constitutes a breach of contract or trust or amounts to a deceit, libel or slander. The rela- tion of an unincorporated association engaged in the business of supplying its subscribers with current news by a ticker service to the public, is the same as that of a publisher of a newspaper, and its duties and obligations are to be measured by the same standard. No action lies against such an association for damages occasioned by its incorrect report of the decision of the United States Supreme Court on the taxable status of stock dividends, by one who, seeing such report in his broker's office, sold stocks at a loss, and his complaint must be dismissed. Jaillet v. Cashman, 383.
1. "Cable transfer " Contracts - Plaintiff entitled to judgment for amount paid for cable transfer.- The term "cable transfer precludes the idea that an actual transfer of money is contemplated or intended by the parties thereto. The seller of a "cable transfer " is in the position of having sold at an agreed price a credit for a sum of money payable at the place indicated in the written memo- randum and the buyer has purchased a credit for such sum avail- able at the place and for the payee named. While money paid for a "cable transfer" becomes the money of the seller, it is still under obligation to the buyer to pay to the payee named in the "cable transfer," the agreed equivalent in foreign exchange of the amount received for such transfer. Where in an action to recover the amount paid to defendant for a "cable transfer" of 7,000 marks to a relative of plaintiff, in Poland, who at all times since the transaction has continued to reside at the address originally furnished to defendant, it appeared that the marks were never delivered although nearly a year and a half had elapsed from the time of the purchase of the "cable transfer in the agreement on which defendant seeks to liabilities have not the effect claimed for them, to judgment for the full amount demanded. National Bank, 387.
and saving clauses escape or limit its plaintiff is entitled Safian v. Irving
2. Failure to establish credit in foreign country-Exchange - Evidence ·Plaintiff entitled to return of money paid for foreign credit with interest.- Where the defendant bank, upon payment to it by plaintiff's agent of the sum of $750 at the city of New York on May 10, 1916, for remittance to plaintiff at Dresden, Germany, where she then resided, undertook to establish a credit for plaintiff
with a bank at Berlin, Germany, within a reasonable time, to the extent of the equivalent in German exchange of that sum when it was paid to defendant, to wit, 3,902.40 German marks, the plaintiff, notwithstanding defendant's failure to perform its under- taking by reason of war conditions, is entitled to a return of the money with interest. On July 22, 1920, the defendant, in the course of a letter to plaintiff's agent, stated that it would be pleased to complete the transaction or to refund the value in dollars at the then rate of exchange, to wit, ninety-one dollars and seventy cents. Held, that a judgment for that amount granted in an action brought while plaintiff was a resident of New York city will be modified by increasing the recovery to the full amount claimed, with interest from the date of its receipt by defendant. Pfotenhauer v. Equitable Trust Co., 396.
3. Money paid for transmission to foreign country - Court with- out power to grant stay until recognition of a government in Russia Depositions Municipal Court of city of New York - Laches.-
A sum of money paid to the defendant bank by plaintiff in 1917, for transmission to his wife in Russia, was never paid to her, and soon after her arrival in this country in 1920, plaintiff demanded a return of the money, which was refused. In a Municipal Court action for money had and received, held, that the court was without power to grant a motion for a stay "until three months after the recognition of a government in Russia by the United States of America, and the appointment of and the installation of Ambas- sadors, Ministers and Consuls, so that a commission may issue to take testimony." Such a stay is too indefinite and uncertain and in effect amounts to a final disposition of the action, and an order granting the motion therefor is appealable and will be reversed and the case set down for trial on a day certain. The action having been begun on December 10, 1920, the defendant in failing to apply for the issuance of a commission to take testimony, until February 3, 1921, the day the case was set for trial, was guilty of laches. Kirsner v. State Bank, 404.
4. When trust company liable for the misappropriation of funds by an executor, one of its depositors · Executors and administrators.
Where a trust company, without investigation, permits checks payable to one of the two executors of an estate to be deposited to what was virtually his personal special account, each and every item of which was the property of the estate, the trust company is guilty of such negligence as amounts to practically a participa- tion in the diversion or misappropriation of the funds of said estate, and in an action by the surviving executor, though he was negligent in confining the entire charge of the estate to his coexecutor, the trust company is liable not only for the balance of the account with interest but to account for the entire fund deposited and to have judgment rendered against it for any moneys disbursed and for which it might be liable by reason of its having participated in their diversion. Where a part of the fund so deposited with the trust company was transferred by plaintiff's co-executor to the credit of another estate of which he was trustee by a check drawn by him and deposited in the account of said estate with the same trust
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