39 N.Y.S. 156 | N.Y. App. Div. | 1896
By the provisions of a decree in partition made by this court in May, 1870, certain moneys (part of the proceeds of a sale under the decree) were deposited with the chamberlain of the city of New York, with a direction that such moneys should be paid to the petitioner (who was then an infant) upon the death of her mother. The petitioner’s mother died in August, of last year, and thereupon the petitioner applied to the chamberlain for the moneys, but that officer declined to make the payment without an order of the court. Whereupon this proceeding was instituted. The only ground upon which the application was contested was that an indictment had been found against the petitioner for the murder of her mother. Upon that fact, and upon that alone, her application mas denied, with leave, however, to renew the same “ after a disposition shall have been made of the indictment pending against her.” The petitioner appeals, claiming that her right to en joy presently that to which she has the clear legal title should not thus have been postponed. We think she is right in this contention. The learned judge at Special Term concedes that even a conviction upon the indictment would not be legal proof of the fact of the murder. In this view he is clearly right. Though the issue be the same, the parties are not the same. The respond
The order should be reversed and the application granted, but, under the circumstances, without costs either of this appeal or in the court below.
Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.
Order reversed and application granted, without costs.