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the court should aid a party in recklessly resorting to the process of the court for the purpose of securing his debt. The motion to vacate should have been granted, and the motion to amend denied. The order appealed from should be reversed, with $10 costs and disbursements; the motion to vacate granted, with $10 costs; and the motion to amend denied, with $10 costs. All concur.

WIDMAYER et al. v. WIDMAYER. (Supreme Court, General Term, First Department. February 16, 1894.) 1. JURISDICTION OF SUPREME COURT-REMOVAL OF TRUSTEE.

Though the supreme court has no power to remove an executor from his office as such, it has the power to remove a trustee, notwithstanding

he is also an executor of the will. & SAME-CONCURRENT JURISDICTION OF SURROGATE.

Though the supreme court will not ordinarily take jurisdiction of proceedings of wbich statutory courts have been given cognizance by special

enactment, it will not always decline jurisdiction on that ground. & SAME-REMOVAL OF TRUSTEE.

A proceeding to remove a testamentary trustee, and for an adjudication that he is no longer entitled to the compensation provided by the will, must be brought in the supreme court. Appeal from special term, New York county. Action by George A. Widmayer and others, as executors, against William F. Widmayer, individually and as executor, to remove defendant from his office of trustee and manager. From a judg. ment in favor of plaintiffs, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and O'BRIEN and PARKER,

JJ.

A. R. Dyett, for appellant.
F. B. Candler, for respondents.

VAN BRUNT, P. J. This action was brought to remove the appellant from his office as trustee and manager of the estate under the last will and testament of George Widmayer, deceased. Said Widmayer died on the 29th of January, 1886, leaving a will which appointed the respondents and appellant executors there. under. Said will was admitted to probate on the 13th of February, 1886, and letters testamentary duly issued thereon. In and by said will the testator devised to his executors and the survivors and survivor of them, their and his successors and successor, certain real estate, to have and to hold the same, and to receive the rents, income, and profits thereof, and to pay over the same as therein directed. Thus there was conferred upon the executors the duties of trustees in addition to that of the ordinary administration of the estate. The testator also inserted in his will the following clause:

"I desire and direct that my son William F. Widmayer shall receive the sum of one thousand two hundred dollars per year, to be paid in equal monthly payments, over and above all commissions which he shall be entitled to as one of the executors of this, my last will and testament, in con

sideration whereof it is my desire and wish that said William F. Widmayer shall take and have the active management of the property and estate, and collect all the rents and income therefrom, and account therefor to his coexecutors, and pay over the same to his coexecutor, my son Henry E. Widmayer, who shall receive from said William F. the collections made by him, and shall deposit the same and all other interest, income, and dividends from bonds and mortgages, stocks, and other securities which shall belong to my estate, and deposit the same in the United States Trust Company of New York. And my said executor Henry E. Widmayer shall draw against such deposits for the purposes indicated in my said will."

It having been claimed by the plaintiffs that the appellant had misconducted himself in his office as manager and trustee of the estate, this action was brought for his removal. Upon the trial at special term the learned court found misconduct on the part of the appellant, and gave judgment directing his removal as manager and trustee of the estate, and also adjudging that said appellant would not be entitled to receive the $1,200 per annum provided for in the will, and that he was indebted to the estate in a considerable sum of money; and from such judgment this appeal is taken.

The appellant claims that the court erred in refusing to dismiss the complaint upon his motion, the grounds of which motion being that this court had not jurisdiction to revoke the letters of William F. Widmayer, or to remove him as trustee; and, secondly, that if it had jurisdiction, it should not exercise it. It certainly is not necessary to discuss the proposition that by the same instrument executorial powers may be conferred upon the executors therein named, and also those of trustees having a different character from the powers which appertain to an executor. This principle is too well recognized to need either discussion or the citation of authority. It is further conceded that the supreme court has no power to remove an executor from his office as such, and it is also equally well settled that the supreme court has the power to remove a trustee from his office as such although he may be also an executor. But it is urged, if this be true, the surrogate's court having jurisdiction to remove the appellant both as executor and trustee, that this court should have remitted the plaintiff to that tribunal, and that this court should have declined such jurisdiction. It is undoubtedly true that the policy of this court has been not to entertain jurisdiction of proceedings and actions of which statutory tribunals have been given cognizance by special enactment. But it by no means follows that in all cases this court should decline jurisdiction upon that ground; and where such jurisdiction has been entertained and judgment rendered, unless it is apparent that some rule has been violated in so entertaining such jurisdiction, this court, at general term, will not necessarily undo that which has been done. But in the case at bar there was reason for the entertaining of jurisdiction. It was sought by this action to remove the appellant from his position as manager of this estate, and to determine the fact that be was no longer entitled to the remuneration which was provided for in the will appertaining to that occupation. Of this the surro

gate's court had no jurisdiction, and relief could only be granted in this court. There seems, therefore, to have been good reason for the court refusing to remit the parties to the surrogate's court, as complete relief could not there be given.

It is further urged that if the court could assume jurisdiction to remove appellant as trustee it could only remove him as trustee · when the office of trustee is separate and independent from that of executor, or has become so; and we are referred to the deci. sion of the court of appeals in Re Hood, 98 N. Y. 363, but we fail to see the application of the case cited. By the terms of the will under which this appellant purported to act, the rights of the executors over the real estate in question, and of which the appellant was acting as manager under the authority conferred in the will, were given to these executors in trust, and it was as trustees that they were managing the estate and collecting the rents and disposing of the same. The duties which were being performed in that regard were no part of the executorial duties, and as such they had no control over the real estate in question. It is therefore manifest that there were duties conferred upon these execu.tors as trustees, and as trustees simply, and in respect to which they were trustees; and it would necessarily follow that this court had jurisdiction to remove them from that office, and to prevent them from the performance of these functions.

It is also urged that the court erred in removing the appellant from his position as manager of the estate; and it is claimed that this management was not confined to the collection of rents and income; that he was to have the active management of the property, and collect, etc., the first being a purely executorial duty; and the appellant was not a manager, independent of being an executor, such duties being part of and embraced in those as executor; and that, as the court had no power to remove him as executor, it had no power to remove him as manager. It seems to us that the learned counsel has overlooked the plain provisions of the will. It is plain that it was the intention of the testator to give him some additional and other authority than that which he was to have as executor. He was to manage the estate, and collect the rents and income thereof, and account therefor to his coexecutors, and pay over the same to one of them, who was to have the authority to pay it out. For these services he was to receive a compensation additional to his commission as executor of $1,200 per annum. It is clear that it was the intention of the testator to give the appellant additional authority from that which the office of executor had conferred upon him in reference to the management of this estate. Now, as to this real estate, it appears that the only authority which this appellant had was in managing or mismanaging the estate. At this time he had no duties as executor. All his duties were as trustee and as manager, and it was the continuance of his violation of these duties which the court sought to prevent by his removal. The appellant, having neglected to perform the duties imposed upon him

by the provisions of the will, clearly was not entitled to the compensation provided for in the will, because it is in consideration of these services that he is to have the payment, or rather the pay. ment is to be made in consideration of the rendition of the services. The provision is:

"I desire and direct that my son William F. Widmayer shall receive the sum of $1,200 per year,

in consideration whereof it is my desire and wish that said W. F. Widmayer shall take and have the active wan. agement of the property and estate, and collect all the rents and income therefrom, and account therefor," etc.

He having violated his duties by the manner in which he had conducted himself in reference to this property and estate, it seems to us that there is no ground for his continuing to claim the compensation which was provided for in the will for the faith. ful performance of those services. Therefore the court did not err in holding that the appellant was not entitled to the salary given to him under the will of his father.

It is not necessary to consider the evidence in detail as to the manner in which this appellant conducted himself in reference to this estate. It appears that he had collected rents which he had not paid over, and these plaintiffs were not obliged to run the risk of his insolvency, or their ability to collect the same from him by legal proceedings. The fact that at some future time he may be very solvent was entirely immaterial. If he failed to pay over, if he conducted the business in an improper way, the fact of his solvency had nothing to do with the question. The plaintiffs were entitled to have the business conducted as was contemplated by the will; and if that was not done, as it is apparent the appellant did not do, they were entitled to his removal.

Certain objections are taken to the admission of evidence in respect to a certain transaction of this manager, who collected rent 10 months in advance, and never paid it over. The objection was that there was no allegation in the complaint upon which the evi. dence could have been received, as the allegations in the complaint applied to certain other rents which the appellant had not paid over. Although this may be the fact, yet, if this were all stricken out, the evidence justified the relief granted directing the removal of the appellant as manager and trustee, and was so com. plete that upon this issue the appellant has suffered no injury by reason of the admission of this testimony. The court, in view of the circumstances, had the right to determine, either upon the trial or by a reference, as to what amount the defaulting trustee owed to the estate; and if it chose to take that account upon the trial it was not error so to do. Therefore the admission of this evidence forms no ground for a reversal. Upon the whole case, we are of opinion, therefore, that no ground is presented for interference, and that the judgment should be affirmed, with costs. All concur.

WITMARK 7. NEW YORK EL. R. CO. et al. (Supreme Court, General Term, First Department. February 16, 1894.) LANDLORD AND TENANT-SURRENDER OF LEASE.

Plaintiffs had leases of four lots executed before the construction of defendant's elevated railroad in the street on which the lots abut. The leases required the lessees to erect buildings on the lots, and the lessors covenanted to renew the leases for two terms. The leases expired after the construction of the elevated railroad; and plaintiffs, who had erected five buildings, took five leases for the renewal term instead of four, in order to partition their interests, and surrendered the original leases. Held, that the estate created by the original leases was not thereby surrendered, but the subsequent leases were mere renewals. Appeal from judgment on report of referee.

Action by Simon Witmark against the New York Elevated Railroad Company and the Manhattan Railway Company. From a judgment awarding plaintiff $1,754.15 damages for diminished rental value, and an injunction restraining the operation of the railroad unless the defendants pay $1,000 for the injury to plaintiff's estate by taking and impairing street easements appurte. nant to No. 330 Ninth avenue, defendants appeal. Modified.

The New York Hospital now is, and since July 2, 1862, has been, the owner in fee of a tract of land bounded north by West Twenty-Ninth street and west by Ninth avenue, which has been divided into lots. November 30, 1869, the society leased Nos. 324, 326, 328, and 330 Ninth avenue to Henry J. Burchell for 21 years from December 31, 1869, which term ended December 31, 1890. The leases contained covenants binding the lessee to erect buildings on the lots, and the lessor covenanted to renew the leasės for two terms of 21 years each, at a rent to be agreed on, or, in case of failure to agree, the amount to be fixed by arbitration. On the 15th of December, 1871, Simon Witmark, the plaintiff, and David Witmark, his brother, became, by mesne conveyances, the assignees of the leases of the four lots before mentioned. The corner lot, No. 330, is 18 feet and 9 inches wide, and each of the others 20 feet wide, and all are 100 feet deep. The buildings erected on these lots extend about 70 feet east from the avenue. At some time (the date not appearing) Simon and David Witmark erected a building on the rear of the four lots 30 feet wide and 78 feet and 9 inches deep, fronting on West Twenty-Ninth street, and known as “No. 370." By the construction of this building the property was divided into five lots, instead of four. In 1881 the brothers desired to partition their leasehold interest, so the four original leases held by them were surrendered, and May 1, 1881, five new ones were taken from the New York Hospital Society for the unexpired term of 21 years. Nos. 328 and 330 Ninth avenue and No. 370 West TwentyNinth street were leased to the plaintiff, and Nos. 324 and 326 Ninth avenue were leased to David Witmark. When the leases of the plaintiff's three lots expired (December 31, 1890) he took renewals for the full term of 21 years. Between December 15, 1881, the date when Simon and David Witmark became the assignees of the four original leases, and May 1, 1881, the date when they surrendered the original leases, and took in their stead five new ones, the defendant constructed and put in operation its elevated railway in Ninth avenue. September 19, 1889, this action was begun to recover past and fee damages. The referee assessed the past damages at $114 per year, and allowed a recovery from September 19, 1883, to March 30, 1893, the date of the report, and assessed the so-called "fee damages" at $1,000.

Argued before VAN BRUNT, P. J., and O'BRIEN and FOLLETT, JJ.

Sidney Smith, for appellants.
Roger Foster, for respondent.

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