135 N.Y.S. 972 | N.Y. App. Div. | 1912
Action to construe a will, to compel a retransfer to a trust estate of certain property alleged to have been wrongfully disposed of, to compel the trustee to account and to have him removed and another person appointed in his place.
After the service of a reply to new matter set up in the answer a motion was made by the defendant for judgment on the pleadings. The motion was denied and the appeal is from that order.
The reply admits that since the commencement of the action the trust created by the will of the testator has terminated and that the trustees have settled and by surrogates’ decrees have been discharged. The only question, therefore, necessary to be considered is whether the plaintiff, notwithstanding such decrees, upon the facts alleged is entitled to any relief.
The amended complaint alleges that the plaintiff’s father died on the 25th of April, 1898, leaving a will by which the plaintiff was bequeathed $35,000, a one-fourth interest in the business of the Mica Booting Company — a firm composed of the testator and the defendant — and a one-half interest in the residuary estate after the death of the plaintiff’s mother; that the $35,000, the one-fourth interest in the Mica Booting Company, and the entire residuary estate under the terms of the will were directed to be held by the trustees therein named in trust until the plaintiff became twenty-five yéars of age, subject, however, to a power of sale by the executors and trustees and in their discretion to pay him a portion of the proceeds before that time; that provision was made for the payment of certain
It is further alleged that in April, 1907, the executors held, as part of the residuary estate, 2,770 shares of the capital stock of the American Coal Products Company, which then or at some time thereafter they sold for $208,365, notwithstanding the fact that it was worth $277,000, and, by such sale through their fraud or negligence, a loss of $68,335 was sustained by the estate and for which the defendant should account.
After certain denials, the answer sets up certain affirmative defenses, from which it appears that the plaintiff was a party to various proceedings in the Surrogate’s Court in which the accounts of the executors and trustees were judicially settled, and it is alleged that the decrees entered in those proceedings are binding and conclusive upon the plaintiff in this action and that, therefore, he cannot litigate the questions here sought to be raised. It is specifically alleged that on February 21, 1900, a decree was entered in the Surrogate’s Court settling the accounts of the executors up to that time, and in that proceeding there was set forth at length all of the facts connected with the sale óf the Mica Roofing Company and of the fifty shares of the Bon Ami Company; that on February 25, 1904, a similar decree for the intervening period was entered in a proceeding in which appeared all of the facts connected with the sale of the balance of shares of the Bon Ami Company; that on July 15, 1907, a decree was entered finally settling the executors’ accounts and directing them to turn over to themselves as trustees all of the assets of the trust estate, and in that proceeding all of the facts in regard to the sale of the stock of the American Coal Products Company were set forth; that on August 6, 1908, when defendant’s cotrustee, William H. Childs, was discharged, a decree was entered settling his accounts and overruling the plaintiff’s objections, which objections included the very issues
The reply admits the entry of the decrees in the Surrogate’s Court; that they have not been reversed, modified or set aside, but denies on information and belief certain allegations of the answer as to what the accounts which were settled by the decrees contained. These denials are clearly frivolous and raise no issue. A denial “upon information and belief” is not expressly authorized by the Code of Civil Procedure (§ 500), hut treating the same asa “ denial of knowledge or information thereof sufficient to form a belief ” it is insufficient, because what the accounts contained and the facts therein set forth are all matters of public record, and they were all judicially considered in a proceeding in which the plaintiff was a party and of which he. necessarily must have knowledge. These denials are manifestly a mere evasion and should he disregarded. (Kirschbaum v. Eschmann, 205 N. Y. 127; Dahlstrom v. Gemunder, 198 id. 449; City of New York v. Matthews, 180 id. 41.) But, even if it he assumed that such denials were made in good faith and are true, this does not raise an issue, inasmuch as the plaintiff admits that the surrogates’ decrees referred to were duly entered and. the same still remain in force. Those decrees, and especially the
But, aside from the conclusiveness of the various decrees of the Surrogate’s Court, I am of the opinion that the acceptance by the plaintiff, or his assignee, of his share of the proceeds of the transaction's now complained of constituted a ratification of such transactions and estops him from now maintaining this action. At the time when the defendant, pursuant to the final decree, paid to the plaintiff or his representative the amount directed to be paid to him, the plaintiff had full knowledge of all the facts of which he now complains. With such knowledge he did not appeal from the decree or ask that it be modified or set aside; on the contrary, he acquiesced in it and accepted the payments directed to be made. He is not now in a position to question the validity of the decree. He certainly cannot take and retain the proceeds of the sales and at the same time regain his interest in the property. In any view, before he could question the validity of the sales, he would have to return what he had received from the proceeds of the sales..
My conclusion, therefore, is that the defendant’s motion for judgment on the pleadings should have been granted.
Ingraham, P. J., Laughlin, Miller and Dowling, JJ., •concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.