In re Lampman

29 N.Y. Sup. Ct. 239

• Court: New York Supreme Court
• Decided: September 15, 1880
• Status: Published

Opinion

Learned, P. <1.:

The only question which we have to consider is whether the special guardian applied the avails of the mortgage as he ha'd been directed to do by the order which authorized him to execute it. Whether or not the ■ order authorizing the mortgage was wisely granted; whether all the debts were such that the court should Ihave authorized their payment; these and similar questions are not liere. The special guardian cannot urge, as an excuse for not obeying the order under which he acted, that the court ought not to have made it.

The proceedings are not well conducted. For the order authorizing the mortgage ought, in itself, to have specified the objects to which the avails were to be applied, without requiring a reference to other papers. But the order refers to the report of the referee Tor a specification of these objects. And the report of the referee is itself improperly drawn; as it refers to the evidence for a statement of these objects, instead of stating them in the report itself. But, notwithstanding this imperfection in the papers, an examination of the evidence shows, beyond all questions, that the note held by Mrs. Ten Broeck is one of the debts, or claims, for the payment of which the money was to be raised by this mortgage. The note held by Mrs. Ten Broeck was in form the note of Mrs. Barnpman. But, in this respect, it was just like the other notes, which were to be paid with these avails. And no matter whose mote it was, the court had decided that the special guardian was to borrow money and pay it, among others. He borrowed the money; he paid the other notes, and he did not pay this. For this misconduct he shows no excuse. The formal order of confirmation of his Report is no protection ; for it was granted without notice to her. Nor can that order be considered, in any sense, a modification of the former order, which directed him to pay Mrs. Ten Broeck. Such an order of confirmation is too often granted almost of course. And the special guardian knew, when he obtained it, that he had not discharged the duty imposed upon him by the former order. To have procured an order confirming his report, when he knew that he had violated his duty, was only another act of misconduct in his ‘trust.

After deducting the payments for attorneys’ fees, &c., ordered to be paid, the residue of the avails, $3,575.25, if distributed pro raid among the debts ordered to be paid, would be ninety per cent, thereon. This proportion Mrs. Ten Broeck is entitled to, upon iter debt of $684; and it will be $615.60.

The order appealed from must be reversed, with $10 costs, and printing disbursements against tlie special guardian, and tbe motion to vacate tbe order of confirmation granted with $10 costs, and the special guardian must be ordered to pay Mrs. Ten Broeck tbe said, sum of $615.60, with interest, as below stated.

Tbe special guardian would, of course, have been entitled to some short time for making tbe payments, before be could be chargeable with interest upon the funds in bis bands. But be certainly bad time sufficient before tbe date of the order of confirmation. That date also may be treated as tbe time of a misappropriation by him. He must therefore pay interest on this sum from, that date, viz.: from April 4, 1878.

Present — Learned, P. J., Bocees and Westbrook, JJ.

Order reversed, with $10 costs, and disbursements, and motion granted.