228 A.D. 719 | N.Y. App. Div. | 1930
Order granting application of the Bayside Red Cross League reversed upon the law and the facts, with costs to Bayside Red Cross League and American National Red Cross, payable out of the funds involved, application denied, without costs, and the counter application of the American National Red Cross granted, without costs. Assuming that the purposes for which the fund was originally, subscribed have failed, the appropriate kindred purpose to which the money should be applied under the cy pres doctrine is performed by the American National Red Cross in its work for the benefit of participants in the World War and their dependents. Moreover, the law will presume that the Bayside Red Cross League and those engaged in it were acting legally rather than illegally, and upon such a view it must be assumed, upon the facts shown in this record, that the subscribers to the fund intended that the moneys be utilized for Red Cross purposes as those purposes are commonly understood to be carried out by the American National Red Cross and that, therefore, the American National Red Cross was free to adopt the agency of the Bayside Red Cross League in collecting the funds whether that agency was regular or irregular in its inception; and under such a view the American National Red Cross is entitled to the fund by way of devoting it to the purposes to which reference has already been made. Kapper, Hagarty, Carswell and Scudder, JJ., concur; Young, J., dissents. Settle order on notice.
