In re Newton — 26 A.D. 547

Majority

p. 547

In the Matter of the Petition of John Newton, as Commissioner of Public Works, to Acquire Lands under Chapter 490 of the Laws of 1883, for a Storage Reservoir in the Town of South East, New York, known as “ Double Reservoir I.” The Mercantile Trust Company, Appellant; Delia Sherwood, Respondent.

Headnote

Moneys paid into court by New York city in condemnation proceedings — they a/re subject to the control of the court, and it may change the custodian to the end that the life tenant may receive a higher rate of interest — notice of the proposed change must be given to the remaindermen.

Moneys deposited by the city of New York, pursuant to the act relative to a new aqueduct (Laws of 1883, chap. 490, § 17), in a trust company designated by the court, accompanied by instructions that the interest be paid to a described person for life, and that after her death the principal be distributed, under the order of the court, to the persons legally entitled to receive it, are thereafter in the custody of the court, and it, in the interest of the life tenant, may direct them to be transferred to a county treasurer who will secure for their use a higher rate of interest than the trust company allows, but this will not be done unless the remaindermen are given notice of the application.

Appeal by The Mercantile Trust Company from an order of the. Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 5th day of January, 1898, granting the petition of Delia Sherwood for an order directing The Mercantile Trust Company to pay to the county treasurer of Putnam county certain funds on trust in said trust company.

William Cowper Prime, for the appellant.

Frederic S. Barnum, for the respondent.

The Legislature of this State in June, 1883, enacted chapter 490 of the Laws of 1883, entitled “An. act to provide new reservoirs, dams and a new aqueduct, with the appurtenances thereto, for the purpose of supplying the city of New York with an increased supply of pure and wholesome water.” Section 17 of this act, so far as it is necessary-for the purposes of this discussion, reads as-follows : “ Whenever the owner or owners, person or persons, interested in

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any real estate taken or affected in such proceedings, or in whose favor any such sum or sums or compensation shall he so reported, shall be under the age of twenty-one years, of unsound mind, or absent from the State of New York, and also in all cases where the name or names of the owner or owners, person or persons, interested in any such real estate shall not be set forth or mentioned, in the said report, or where the said owner or owners, person or persons, being named therein cannot upon diligent inquiry be found, or where there are adverse or conflicting claims to the money awarded as compensation,, it shall be lawful for the said mayor, aldermen and commonalty to pay the sum or sums mentioned in the said report, payable, or that would be coming to such owner or owners, person or persons, respectively, with interest aforesaid into such trust company as the court may,, in the order of confirmation,-direct, to the credit of such owner or owners, person or persons, and such payment shall be as valid and effectual, in all respects, as if made to the said owner or owners, person or persons, interested therein, respectively, themselves, according to their just rights,”

Under the provisions of this statute the court, in January, 1891, ordered that a certain sum of money known as “Parcel 70” should be deposited with 'the Mercantile Trust Company, the interest on which should be paid to Delia Sherwood during her natural life- . time, and; at her death, to be distributed, on the further order of the court, among the persons legally entitled to receive the same. On a petition to a Special Term of the Supreme Court, in which it was alleged that the county treasurer of Putnam county would pay a higher rate of interest than the Mercantile Trust Company, it was. ordered that the trust company pay over the funds-in parcel 70 to the treasurer of Putnam county, who was ordered to pay the interest, to the petitioner, Delia Sherwood, and to distribute the fund, at her death, as directed in the original order'of the court. The Mercantile-Trust Company appeals from this order, and urges that, under the provisions of section 17 of chapter 490 of the Laws of 1883, the court has-no power to direct this fund to be paid to any other than a trust company. The object of the statute was not to interfere with the-general power of the court to superintend funds within its legitimate control, but. to. provide a place of deposit which should meet the requirements of the Constitution by enabling the city to make com

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pensation for lands taken in carrying out the objects of the law. It made it lawful for the city to pay the money into the custody of such trust companies as the court should designate, hut it did not deprive the court of its right to protect such funds against an unreasonable reduction of interest, or prevent its exercising control of the money for the protection of those who are to come into possession at the close of the life estate in the property taken. The court has the right, and it is its duty, to see that the life estate of Delia Sherwood in the property taken is not made practically valueless; that the property is not taken from her without just compensation, through the operation of the trust company in lowering its rate of interest, when this can be done with safety to those who are to come into subsequent possession. Whenever it appears to the court that the fund is not realizing that rate of income which it is reasonable to expect, and when there is an opportunity to place it where it will become more productive, without infringing upon the rights of others, it is clearly within the power of the court to order the transfer of the fund. The city having paid in the money to a trust company, designated by the court, its responsibility ends, and the fund comes under the general guardianship of the court for the benefit of those who shall be the lawful heirs at the time of the death of Delia Sherwood, who had the life estate in the property from which this fund, known as parcel YO, was realized, the avails of which belong to her during her lifetime. And were these the only considerations involved, we should affirm the order appealed from.

We think, however, that, before the fund shall be reinvested under the order of the court, the persons entitled to the remainder after the termination of the life estate are entitled to notice of the application so to do, and we aré of the opinion that the Mercantile Trust Company, being the present custodian of the fund, has sufficient standing in court to appear and request that this he done.

The order of the Special Term is reversed, without costs, with leave to renew the motion upon notice as heretofore indicated.

All concurred.

Order reversed, without costs, and with .leave to renew the motion upon notice as indicated in the opinion.