App. Div.]

First Department, April, 1910.

FIRST DEPARTMENT, APRIL, 1910.

In the Matter of the Application of ROBERT BOYD, Respondent, v. George W. MCGUIRE, JR., and Others, Impleaded with HAROLD J. BUTTON, Appellant.

Discovery — examination of party expectant — affidavits.

Appeal from an order entered in the New York county clerk's office on the 4th day of March, 1910, denying a motion to vacate an order directing the examination of Harold J. Button.

PER CURIAM: This is an appeal from an order denying a motion to vacate an order to examine one H. J. Button as a party expectant to an action to be hereafter brought. The affidavit upon which the order for examination was based contains nothing to show or even to suggest that the applicant has any cause of action against the appellant. On the contrary, if any inference on the subject can be drawn from the affidavit it is that the plaintiff has no such cause of action. The authorities are unanimous that such an order cannot be sustained under such an affidavit. (Muller v. Levy, 52 Hun, 123; Matter of Anthony & Co., 42 App. Div. 66; Tenoza v. Pelham Hod Elevating Co., 50 id. 581.) The order should be reversed, with ten dollars costs and disbursements, and motion to vacate granted, with ten dollars costs. Present Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

In the Matter of MORRIS JACOBS, an Attorney, Respondent.

Attorney and client — holding money belonging to client.

Application to disbar an attorney.

PER CURIAM: Upon the papers submitted by the petitioner a case was presented which justified the submission of the charges to this court. The answering affidavits satisfactorily meet the charges against the respondent. An affidavit was submitted by his client from which it appears that the respondent was authorized to take whatever action he thought necessary to protect his client in the matter of the collection of these notes; that he had an implied authority to grant an extension of time for the payment of the notes and had the authority from his client to collect the notes. The action of the respondent in accepting the $100 on account of one of these notes in the absence of his client and agreeing to the extension was thus within the authority conferred upon him, and it cannot be said to have been misconduct on his part to retain the amount paid him to secure such extension until he could hear from his client who was then absent. It does not appear that he misappropriated this $100, or used it for his own purposes. As soon as he was informed that his client had written a letter which would seem to imply that he had no right to collect this money, he at once paid it to the trust company, and there is no evidence that he, at any time, misappropriated any of his client's money, or that it was at all unprofessional to retain the money that had been paid on account of his client until he could hear from her. Since this proceeding was submitted we have received

First Department, April, 1910.

[Vol. 137. from the attorney for the petitioner a notice that after examining the affidavits submitted the petitioner requests that the proceeding be withdrawn and discontinued and upon this application this course will be adopted. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Application to withdraw proceeding granted.

HOWARD SLADE and MARY G. SLADE, Appellants, v. THE AMERICAN EXCHANGE NATIONAL BANK, Respondent, Impleaded with FRANK SQUIER and Others. Appeal from an order entered in the New York county clerk's office on the 21st day of March, 1910, granting the motion of the defendant bank and striking out parts of the supplemental complaint as irrelevant.

PER CURIAM: The order should be modified by providing that paragraphs 1 to 21, both inclusive, paragraphs 24 to 31, both inclusive, and paragraphs 34 to 51, both inclusive, of the supplemental complaint be stricken out as irrelevant. And the order should be further modified so as to provide that the plaintiffs may serve upon the defendant a supplemental complaint containing paragraphs 22, 23, 32, 33, 52 and 53 of the amended complaint heretofore served, within five days from the service of a copy of the order to be entered hereon, with notice of entry upon the attorneys for the plaintiffs. As so modified, the order appealed from should be affirmed, without costs. Present — Ingraham, P. J., Laughlin, Scott and Miller, JJ. Order modified as indicated in opinion, and as modified affirmed, without costs. Settle order on notice.

HOWARD SLADE and MARY G. SLADE, Appellants, v. ELBERT A. Bennett, Respondent, Impleaded with FRANK SQUIER and Others.

Appeal from an order entered in the New York county clerk's office on the 21st day of March, 1910, granting the motion of the defendant Bennett and striking out parts of the supplemental complaint as irrelevant.

PER CURIAM: The order should be modified by providing that paragraphs 1 to 21, both inclusive, paragraphs 24 to 31, both inclusive, and paragraphs 34 to 51, both inclusive, of the supplemental complaint be stricken out as irrelevant. And the order should be further modified so as to provide that the plaintiffs may serve upon the defendant a supplemental complaint containing paragraphs 22, 23, 32, 33, 52 and 53 of the amended complaint heretofore served within five days from service of a copy of the order to be entered hereon, with notice of entry upon the attorneys for the plaintiffs. As so modified the order appealed from should be affirmed, without costs. Present - Ingraham, P. J., Laughlin, Scott and Miller, JJ. Order modified as indicated in opinion, and as modified affirmed, without costs. Settle order on notice.

App. Div.]

First Department, April, 1910.

LAWRENCE E. BROWN, as Substituted Testamentary Trustee under the Last Will and Testament of AGNES HYATT ROBINSON, Deceased, Appellant, v. CHARLES A. ROBINSON, Individually and as Trustee under the Last Will and Testament of AGNES HYATT ROBINSON, Deceased, and Others, Respondents, Impleaded with THE RECTOR AND VESTRYMEN OF THE CHURCH OF THE HOLY COMMUNION and Others.

Appeal from an order entered in the New York county clerk's office on the 10th day of February, 1910, denying a motion for a stay of certain proceedings. PER CURIAM: In this action the persons to whom the beneficiary has assigned an interest in the estate to which he will be entitled on arriving at the age of twenty-five years, are made parties, and there can be a decree herein finally settling the account of the trustee and determining all questions presented as to the ownership of the trust property. In the special proceeding (Matter of Robinson, post, p. 939), in which the beneficiary seeks to compel the trustee to account, and which is before this court on appeal from an order granting a motion for an accounting, these persons are not parties, and in that proceeding there can be no decree which would bind all the parties having or claiming an interest in the fund. These persons to whom it is alleged assignments have been made would each have a right to call the trustee to account, and it is proper that the accounting should be had in one action where they are all parties. As any party to the action can require that it be prosecuted, there seems to be no reason why the independent petition, which involves only the right of the petitioner and the questions between him and the trustee, should be proceeded with; but the accounting should be had in the action in which all persons interested in the fund are parties, and an order entered staying the special proceeding until final judgment is entered in this action. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Present Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

In the Matter of the Estate of AGNES HYATT ROBINSON, Deceased. LAWRENCE E. BROWN, Trustee under the Will of AGNES HYATT ROBINSON, Deceased, Appellant; GEORGE HYATT ROBINSON and Others, Respondents. Appeal from an order entered in the New York county clerk's office on the 5th day of March, 1910, granting a motion for an accounting.

PER CURIAM: As the prosecution of this special proceeding has been stayed during the pendency of an action for an accounting brought by the trustee against those interested in the estate, without passing upon the question as to whether or not this proceeding can be maintained, the order appealed from requiring the trustee to file an account should be reversed, with ten dollars costs and disbursements, and the motion denied, with leave to the petitioner to renew

First Department, April, 1910.

[Vol. 137. the motion if the action to settle the account of this trustee should be discontinued or not prosecuted with reasonable diligence. Present-Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with leave to petitioner to renew motion if action to settle trustee's account be discontinued or not prosecuted with reasonable diligence.

In the Matter of the Application of WILLIAM H. VAN NAME, Appellant, Plaintiff in the Action against Queens Land and Title Company, to Compel Performance by ALLEN T. HAIGHT, Respondent.

Appeal from an order entered in the New York county clerk's office on the 6th day of April, 1910, denying motion to compel assignee of purchaser at a judicial sale to complete purchase.

PER CURIAM: Although it was conceded upon the argument that the proper course to pursue was to order a resale, instead of proceeding at once against the purchasers to take title, such an order cannot be made in this kind of a proceeding; a motion to that effect should be made in the action in which the sale was ordered. The order, therefore, is affirmed, without costs to either party, without prejudice to a motion in the action for a resale. Present - Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Order affirmed, without costs, and without prejudice to a motion to be made in the action for a resale.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY A. LA CHICOTTE, Appellant, v. JAMES W. STEVENSON, as Commissioner of Bridges of the City of New York, Respondent.

Appeal from an order as resettled, entered in the New York county clerk's office on the 1st day of February, 1910, which ordered that Kingsley L. Martin, commissioner, etc., be added as a party defendant, etc.

PER CURIAM: The order appealed from should be modified by striking out the paragraph ordering "that Kingsley L. Martin, Commissioner of Bridges of the City of New York, be and he hereby is added as a party defendant for the purpose of receiving the check in payment of costs and disbursements to be taxed, the proceeds of said check to be deposited by said Kingsley L. Martin in the treasury of the City of New York;" and inserting in licu thereof that Kingsley L. Martin, commissioner of bridges of the city of New York, be and he hereby is substituted in the place of James W. Stevenson as defendant herein; and as so modified affirmed, without costs. Present - Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Order modified as directed in opinion and as so modified affirmed, without costs. Settle order on notice.

App. Div.]

First Department, April, 1910.

JANE A. STOKES, Appellant, v. INVESTORS AND TRADERS' REALTY COMPANY and Others, Respondents.

Appeal from an order entered in the New York county clerk's office on the 12th day of April, 1910, denying a motion for a preference.

PER CURIAM: As the plaintiff was clearly entitled to a preference under the rules of this court,* it was error for the judge below to refuse to grant it. The order is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Present - Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

HAROLD R. SCHAFFNER, an Infant, by GEORGE SCHAFFNER, his Guardian ad Litem, Respondent, v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.

Appeal from a judgment entered in New York county clerk's office on the 23d day of October, 1909, upon a verdict and from an order denying a motion for a new trial.

Judgment and order affirmed, with costs. No opinion. Present — Ingraham, P. J., McLaughlin, Laughlin, Miller and Dowling, JJ. Ingraham, P. J., and Miller, J., dissented upon the ground that in their opinion there was no evidence that the plaintiff was free from contributory negligence that would justify the submission of the case to the jury.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK KAMINSKY, Appellant.

Appeal from a judgment of the Court of Special Sessions, First Division, Children's Part, entered on the 3d day of June, 1909, convicting the defendant of grand larceny, second degree.

Judgment affirmed. No opinion. Present - Ingraham, P. J., McLaughlin (dissenting), Laughlin, Miller and Dowling, JJ.

MCLAUGHLIN, J. (dissenting): I dissent upon the ground that there is no proof in this record that the defendant was under sixteen years of age, and that such proof was essential to the jurisdiction of the court.

The New York Steam Company, Respondent, v. Patrick Ryan and Andrew McC. Parker, Composing the Firm of Ryan & Parker, Appellants.- Judgment and order affirmed, with costs. No opinion.

Alrick H. Man and Katharine T. Martin, as Trustees of and under the Last Will and Testament of Mary J. Martin, Deceased, Respondents, v. Charles L. Du Vivier, Appellant.- Judgment and order affirmed, with costs. No opinion. Hermann Crueger, Respondent, v. Frederick W. Whitridge, as Receiver of

*See Rules for Regulation of Special Terms and Calendar Practice, First Judicial District, rules 11, 12. - [REP.