In Re the Accounting of Syracuse Trust Co.

296 N.Y. 244 | NY | 1947

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Though the compromise agreement of January 7, 1937, was made in violation of section 15 of the Personal Property Law and section 103 of the Real Property Law, the Surrogate's decree of January 14, 1937, approving that agreement was nevertheless a conclusive adjudication of the validity thereof. The decree of January 14, 1937, was consented to by all parties in interest and no appeal therefrom was ever taken. Hence that decree was not open to the collateral attack that was made upon it by the appellants in this independent proceeding. (See Crouse v. McVickar, 207 N.Y. 213,217; Schacht v. Schacht, 295 N.Y. 439; 1 Freeman on Judgments [5th ed.], § 357.) Douglas v. Cruger (80 N.Y. 15) is not authority for a contrary view. The determination that was under attack in the Douglas case was an order which had none of the attributes of a final adjudication. The relevant distinction is pointed out in Bannon v. Bannon (270 N.Y. 484). (See 2 Freeman on Judgments [5th ed.], § 667.)

We think the Appellate Division was right in its refusal to surcharge the trustee for the losses that resulted from the acquisition or retention of the railroad bonds in question.

The challenge to the allowances that were awarded to the referee and to the special guardian does not present any question of law.

The order should be affirmed, with costs to the respondent, payable out of the estate.

LOUGHRAN, Ch. J., CONWAY, DESMOND, THACHER, DYE and FULD, JJ., concur; LEWIS, J., taking no part.

Order affirmed.