246 A.D. 15 | N.Y. App. Div. | 1935
Supported by the affidavit of the plaintiff that a real controversy has arisen between the parties, which the parties have agreed to submit to the Appellate Division of the Supreme Court, State of New York, First Department, for decision, and that ■the submission thereof is made in good faith for the purpose of determining the rights of the parties hereto, the parties have stipulated as follows: That heretofore and on May 7, 1930, the plaintiff, Nello Nepola, was an infant under twenty-one years of age, and that on that date, pursuant to an order of the Supreme Court of the State of New York, a copy of which is annexed to the agreed statement of facts marked Exhibit A, the- sum of $22,000 was deposited with the chamberlain of the city of New York to the credit of said infant, Nello Nepola; that thereafter and on May 27, 1930, pursuant to said order, the chamberlain of the city of New York purchased certificate L. F. M. Series 218, of the State Title and Mortgage Company, in the sum of $21,800; that said purchase, when made, was a legal-investment for trust funds; that
“First. City's liability for funds deposited with chamberlain. The city of New York and outside thereof, each county of the state shall be responsible for all funds or moneys deposited with the chamberlain and treasurer thereof, respectively, by virtue of a judgment, decree or order of [for] any court of record in this state, and an action to recover any loss to or of such fund may be brought against the city or county, respectively, by any party aggrieved or by the comptroller of the state of New York in a court of competent jurisdiction. No liability shall, in any event, attach to a county treasurer or city chamberlain because of a surrender made by him in good faith in accordance with the direction of any [an] order of such court.”*
Upon the aforesaid statement of facts agreed upon by the parties, the question submitted to this court is as follows:' Did the plaintiff suffer any loss by reason of the facts set forth, for which loss the defendant, The City of New York, is hable to the plaintiff in damages? It is stipulated that if such question be answered in the affirmative, a referee shall be appointed to hear and report to the court the amount of damage sustained by the plaintiff by reason of the above statement of facts, and that judgment shall be entered in favor of the plaintiff and against the defendant for the amount of damage sustained as determined by the court upon the report of such referee; that if the question be answered in the negative, judgment shall be entered for the defendant, The City of New York.
We are of the opinion that, under the stipulated facts, the plaintiff suffered no loss, by reason of the facts set forth, for which the defendant, The City of New York, is hable to the plaintiff in damages. Under the agreed statement of facts, the plaintiff attained his majority on April 8, 1933. Shortly thereafter and on April 21, 1933, the plaintiff applied for and was granted an order at Special Term of the Supreme Court requiring the chamberlain
“ Ordered, that the aforesaid sum of $22,000.00 be invested by the Chamberlain of the City of New York in guaranteed First Mortgage certificates on real estate, bearing not less than five (5%) percent interest per annum.”
In strict conformity with such order, the chamberlain made the investment required thereby.
We are of the opinion that plaintiff’s acceptance of the mortgage certificate in question upon his attaining his majority precludes him from making any claim against the city at this time. Had the plaintiff refused to accept the certificate which the chamberlain held as an investment under order of the court, perhaps a different question might be presented. But here the plaintiff applied for and obtained an order of the court that the certificate in question be turned over to him, and this was done by the chamberlain.
We do not think the plaintiff is in anywise aided by the provisions of section 1 of chapter 186 of the Laws of 1908, as amended by chapter 185 of the Laws of 1927, which provides that the city of New York shall be responsible for all funds or moneys deposited with the chamberlain by order of a court, and that an action to recover any loss to or of such fund may be brought against the city by the party aggrieved. The statute, however, in its final sentence, provides as follows:“ No liability shall, in any event, attach to a county treasurer of city chamberlain because of a surrender made by him in good faith in accordance with the direction of an order of such court.”
In the case at bar the investment of the plaintiff’s funds by the chamberlain was made in strict conformity with the express order of the court, that the money be invested in guaranteed first mortgage
*21 “ We discover, therefore, nothing in the conduct of Mr. Lane to justify the order which was sought against him. He invested these funds and had a right to do so. The securities chosen at the time were ample, and, to all reasonable judgment, prudent and safe investments. The fund thus intact, and represented by good securities, was, at the close of his term of office, handed over to his successor. That ended the responsibility of' Lane, and we see no reason to continue or prolong it.
“ His successor, Mr. Tappan, continued to receive the interest upon these investments until the two misfortunes happened from which has come all the mischief. * * *
“ We conclude, therefore, that no remedy for the loss exists against either Lane or Tappan.”
While in the case of Chesterman v. Eyland the question presented involved the responsibility of a chamberlain for the legal acts of his predecessor, the rule there established by the Court of Appeals should, we think, be applicable to the city.
We are, therefore, of the opinion that the question submitted by the parties should be answered in the negative, and that judgment herein should be entered for the defendant, with costs.
McAvoy, O’Malley, Townley and Untermyer, JJ., concur.
Judgment directed for defendant, with costs. Settle order on notice.
The title of this act, which, after omitting the part relating to New York city, was incorporated in section 249 of the County Law, by chapter 16 of the Laws of 1909, is “An Act to make each county responsible for all funds or moneys paid into court therein.” The act of 1908 was amended by chapter 185 of the Laws of 1927. The section heading set out is not derived from the statute. The stipulation has Substituted “ of ” and “ any ” for the words set out in brackets. — [Rep.