Farrell v. Brady

191 A.D. 333 | N.Y. App. Div. | 1920

Putnam, J.:

The complaint herein charged that Brady had dealt improperly with this trust; in substance that he had failed to account. It did not aver when the plaintiffs claimed to have first learned of the basis for such charges, or what were the impediments to an earlier prosecution of such claim, or how they explained or excused their long and unreasonable laches. The bill of particulars indicated as plaintiffs’ theory that, notwithstanding Brady’s accounting in 1891 and the omission of any after-claims on him in his lifetime, his representatives were under the burden of accounting for any subsequent transactions standing in Brady’s name, relating to the Ryer Homestead lots, or as to any mortgages thereon, in which Brady had any interest.

A close examination of this record shows no basis whatever for asserting that Brady had not accounted for any of this trust property. The lots conveyed by Mason to Mrs. Seiferd were never part of this trust. Although the Seiferd lots were included in this auction sale, they were distinct, and the proceeds separately reported by the auctioneer. Therefore, the court at Special Term rightly found that these lots “ were not subject to any trust in the hands of said John J. Brady.”

Like most of such urban developments, these sales of lots, bounded by lines of projected streets not yet opened, did not pass title to such street beds, and (where afterwards the public streets- diverged from the platted fines of the development) left gores, that Brady subsequently conveyed, or became the basis of an award in street opening proceedings. These gores passed by public recorded deeds; or in one instance through condemnation proceedings to which Miss Agnes K. Murphy was a party defendant, resulting in an award of $188.60, which Brady received. If this award be claimed as applicable to this trust, the appellant’s proportion (one-seventh), being less than $27, never questioned by any of the syndicate, must be regarded as waived, no doubt for the reason that such insignificant gores and street beds were deemed of only nominal value, not more than enough to compensate for a conveyance, or for making proof of title in condemnation proceedings.

In such aggregate sales of over 200 building lots, where part of the purchase price was left on mortgage, it would have been extraordinary to find that every successful bidder carried out his purchase. In case the bidder did not meet the terms of sale, the lots so bid off were taken over by others, who gave back mortgages, to be later interchanged with other securities. Such transactions, apparently known and fully understood by the members of this syndicate, furnish no ground at this late day to charge that the trustee made sales to dummies, or that the terms reported disguised the real transactions.

A more intricate matter is the handling of the mortgages. No less than twenty-two of the lot buyers’ mortgages were turned over to Abraham B. Tappen, one of the vendors, as part of the general settlement. The attempts to show any concealment or suppression in this regard have wholly failed. These instruments were for the most part recorded. Such record may be the basis of an inference of notice of the transaction to each member of this syndicate so that their acquiescence for nearly a generation authorizes the conclusion that the properties so handled had been fully accounted for.

This appellant was not only a member of the original partnership, but was keen in her participation. In some instances she took the acknowledgments of these instruments. Had any of her rights been affected, it seems incredible that she should have remained quiescent during all of Judge Brady’s lifetime. Had the trustee withheld his accounts, a different inference might follow. But where a minute and comprehensive statement of this land speculation followed almost directly after closing these titles, accompanied by checks in final settlement, a stronger c^se must be made to substantiate these charges of conversion of proceeds, when such misconduct was never hinted at within the trustee’s lifetime.

I advise that the judgment be affirmed, with costs.

Present—Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ.

Judgment unanimously affirmed, with costs.