123 N.Y.S. 1070 | N.Y. Sup. Ct. | 1910
On May 5, 1885, an order was made by the court in this matter directing the special guardian to deposit certain moneys with the city chamberlain to the credit uf the action and subject to the order of the court as to distribution. It appears that on the 14th day of May, 1904, the shares of all the infants except Catherine McNulty had already been paid out by various orders of the court. On the day last mentioned this court made an order in this matter directing the chamberlain to pay to Catherine McNulty or her attorney the moneys in his hands to the credit of the petitioner,, the said Catherine McNulty, with all accrued interest earned or received thereon, less his commissions. The order recites the petition of Catherine McNulty, verified May 11, 1904, and the affidavits of John McNulty and Mary McNulty, verified May 11, 1904, and the certificate of the city chamberlain. The petition and affidavits alleged specifically “ that the petitioner was the identical person named in the proceeding in which the money was paid into court,” and that she was of full age. On the 14th day of May, 1904, on presentation of a certified copy of the order of May 13, 1904, and duly countersigned, a check to the order of Catherine McNulty or J. J. Fleury, attorney, was delivered to the latter and the check was paid and bears the indorsement of Catherine McNulty; and the answering affidavit alleges that the Catherine McNulty who indorsed the check is the same individual who petitioned the court, and was the person intended by the court to receive the money. One Catherine McNulty Carroll now seeks to vacate the said order of May 13, 1904, and further asks an order directing the present city chamberlain to pay to her all moneys alleged to have been deposited to her credit with him in this matter, on the ground that she is the identical person named as Catherine McNulty, infant, in this proceeding, and that the moneys deposited to her credit have never been paid to her. Mrs. Carroll in her petition further alleges that the signature, Catherine Mc-Nulty, affixed to the petition of May 11, 1904, is not hers, and that she never signed any affidavit or legal document in any proceeding to collect the said sum of money deposited to her credit. The present chamberlain entered upon the duties
Motion denied, without costs.