Hamilton v. Cutting — 60 A.D. 293

Majority

p. 293

Eleanor Margarette Hamilton, by George B. Morris, her Guardian ad Litem, Respondent, v. W. Bayard Cutting and James G. Hamilton, as Trustees under the Last Will and Testament of Charles Kennedy Hamilton, Deceased, Appellants, Impleaded with J. Eberhard Faber and Others.

Headnote

Accounting in the Surrogates Court by two trustees seeking to resign—not enjoined, by the Supreme Court in an action brought therein to compel an accounting and the removal of their associate trustee.

In an action brought by the beneficiary of a trust created by will to require the trustees to render an account and to procure the removal of one of them, an injunction restraining two of the trustees, who had instituted proceedings in the Surrogate’s Court to obtain their discharge as trustees, from prosecuting such proceedings until the determination of the action, should not be granted, where it appears that the accounts of the two trustees who desiring to resign are being investigated by referees appointed by the surrogate; that a reference for that purpose has extended over two years and has to a large extent been completed without objection, and that the results and the expense of the proceedings in the Surrogate’s Court will, be lost if their prosecution is enjoined.

Appeal by the defendants, W. Bayard Cutting and another, as trustees under the last will and testament of Charles Kennedy Hamilton, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of February, 1901, continuing an injunction order dated the 3d day of December, 1900, and restraining the prosecution of proceedings instituted by said defendants in the Surrogate’s Court until the determination of the action.

George Zabriskie, for the appellants.

Thomas Allison, for the respondent.

The plaintiff, as beneficiary of a trust of which the defendants Cutting, Hamilton and Faber are the trustees, asks in this action that Cutting, Hamilton and Faber be required to render an account of their proceedings as trustees under the last will and testament of ■ Charles Kennedy Hamilton, Jr., deceased; that J. Eberhard Faber, one of the trustees, be removed from office under the said will, and that the amount to which the said estate was lawfully and equitably entitled under the consolidation of certain corporations be ascertained, and that the said trustees be required to make' good that amount to the said estaté; that pending such an accounting all proceedings on behalf of the defendant Cutting, in a proceeding now pending in this court for his discharge as trustee, and all proceedings on the part of the defendant James G. Hamilton, in a proceeding pending in the Surrogate’s Court for his discharge as trustee, be stayed until the hearing and determination of this action. A temporary injunction was granted restraining the defendants Cutting and" Hamilton from continuing the proceedings instituted to allow them to resign as trustees, and not allowing them to, account as such until the final determination of this action; and from the order continuing that injunction this appeal is taken.

It appears from the papers that the defendant Cutting has for nearly three years been endeavoring' to resign as trustee, and these attempts have been persistently opposed by those representing the infants; that the defendant Hamilton has also resigned as trustee; that in May, 1899, his accounts were filed and they are now on investigation before a referee. The accounting of Mr. Cutting has proceeded before a referee since January 11, 1900. On that day his account was filed and the reference has since proceeded. Mr. Cutting and his cotrustees have been examined and other witnesses examined on behalf of the trustees and on behalf of the plaintiff, and the proceedings had upon both of these references, extending over two years, will be rendered valueless and the expense thereof lost unless the accountings are allowed to continue and the questions as to the correctness of the trustees’ accounts therein are determined. After the commencement of this action the counsel who are representing this infant and her guardian ad litem proceeded before the referees in the pending proceeding, and it would appear from the

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papers that both of these accountings have been to a large extent •completed without any objection by counsel representing the infants. I can see no reason why the accounting parties should be compelled to again account in this action, when the questions so far as these two trustees who now'seek to resign are concerned can be settled in the pending proceedings. In both of the proceedings the trustees ask leave to resign as trustees. No such relief is asked against them in this action, and they certainly should be allowed to prosecute the proceedings that they have instituted, and if they obtain leave to resign as trustees, as an incident to such resignation, proceed with the accounting that is necessary.

I can see no justification in restraining these two trustees from prosecuting their application for leave to resign their trust.

It follows that the order appealed from should be reversed, with ■ten dollars costs and disbursements, and the motion to continue the injunction denied, with ten dollars costs.

Yan Brunt, P. J., Bumsey, O’Brien and Hatch, JJ., concurred.

Order reversed, with ten dollars Costs and disbursements, and motion denied, with ten dollars costs.