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In re Bank of New York

280 A.D. 857 Court First Department, Decision date 1952-07-01 English

Decision Majority — Per Curiam. · Concurring — Peck, P. J.

Contents
p. 857
First Department,
July, 1952.
(July 1,1952.)
In the Matter of Bank of New York (formerly Bank of New York and Trust Company), as Trustee under an Agreement wherein Edwin L. Coyle and Another Are Named as Settlors. Peter B. Nelson et al., Plaintiffs, v. Bank of New York, as Trustee under an Agreement with Edwin L. Coyle and Another, as Settlors, et al., Defendants. Peter B. Nelson et al., Appellants; Bank of New York and Trust Company, as Trustee, et al., Respondents.

Appeals from a final order and judgment of the Supreme Court in favor of respondents, entered March 8, 1949, in New York County, upon the decision of a Referee appointed by the court to hear and determine the consolidated action and proceeding.

The Referee erred in holding there was one settlor; there were two settlors to the trust, and as to creditors the trust was void under section 34 of the Personal Property Law. On this record, it was also established that the intention of the settlors was to create a trust for the sole benefit of the settlors who have the right to revoke under section 23 of the Personal Property Law.

The final order and judgment appealed from should be modified accordingly and as so modified affirmed, with costs to appellants payable out of the trust. Findings of fact and conclusions of law inconsistent herewith should be reversed and contrary findings and conclusions made. Settle order.

(concurring). I agree that there were two settlors of the trust and in my opinion a sufficient control was retained and maintained by the settlors over the administration of the trust to indicate that they were concerned only with providing for themselves and had no intention of creating other beneficial interests. Accordingly, they may revoke the trust under section 23 of the Personal Property Law. The creditors are fully protected by this disposition ■— more so than they would be under section 34 of the Personal Property Law, under which, it would seem to me, they would be limited to reaching the contribution made by Mr. Coyle.

Dore, Cohn and Callahan, JJ., concur in Per Curiam opinion; Peck, P. J., concurs in opinion.

Judgment and order unanimously modified in accordance with the opinion herein and, as so modified, affirmed, with costs to the appellants payable out of the trust. Settle order on notice.