Boenhardt v. Loch

129 A.D. 355, 113 N.Y.S. 747, 1908 N.Y. App. Div. LEXIS 1298

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1908
• Status: Published

Opinions

Scott, J.:

I am of the opinion that the complaint was rightly dismissed, for the plaintiff is clearly not entitled to the relief he seeks, which is that the capital of the relief fund now in the hands of the defendants be distributed to him and to such other sufferers from the Slocum disaster as may still survive and still suffer from the results of that accident. We may not be able to say precisely what the donors of the fund intended should be done with the money, but we may feel reasonably certain that they did not intend such a distribution as plaintiff asks for. The evidence, unless we may accept as evidence a referee’s report in another action between different parties, gives no information as to the terms upon which the fund was contributed, and affords no ground whatever for relief. If we accept the referee’s report, it appears that there were four funds to which contributions were made. One of tin le consisted of moneys specifically designated “ For sufferers.” Much more than the amount thus designated had been paid out. I see no necessity for instructing the defendants as to the performance of their duties respecting the money still in their hands, as that has already been done by the Supreme Court in another action. (See Loch v. Mayer, 50 Misc. Rep. 442.)

In my opinion the judgment should be affirmed, with costs to the respondents other than the Attorney-General.

Patterson, P. J., and Clabke, J., concurred; Ingraham, J., dissented.

Laughlin, J.:

I vote for affirmance upon the ground that the moneys were donated for the purpose of temporary relief only, and not to create a pension fund for the sufferers, and that, therefore, plaintiff.has now no interest in the fund.