In re the Accounting of Bank of New York

New York Supreme Court

In re the Accounting of Bank of New York

21 Misc. 2d 566, 196 N.Y.S.2d 439, 1959 N.Y. Misc. LEXIS 2382

CourtNew York Supreme Court

DecidedDecember 16, 1959

StatusPublished

Cited by2 cases

This text of 21 Misc. 2d 566 (In re the Accounting of Bank of New York) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Accounting of Bank of New York, 21 Misc. 2d 566, 196 N.Y.S.2d 439, 1959 N.Y. Misc. LEXIS 2382 (N.Y. Super. Ct. 1959).

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Opinion

Irving Saypol, J.

Upon the submission of this special proceeding to settle the final account of the trustee of this inter vivos trust (Civ. Prac. Act, art. 79), decision ivas withheld pending justification of the item in the account showing premature payment, without judicial approval, of $3,750 for legal services and $23.78 disbursements incidental to this proceeding (Matter of Bucherer, N. Y. L. J., March 12, 1959, p. 12, col. 3). An acceptable showing is now made by affidavit of legal services Avith proof of service on all interested parties. No objection has been interposed and, accordingly, the account is settled and allowed.

The problem posed by the petition regarding a creditor’s claim for $1,592.40 legal services, unrelated to this trust, is supported by the answer and affidavits of the claimant. The contention is that this trust for the benefit of and under the exclusive control of the settlor is void as to past or future creditors, including the claimants (Personal Property Law, § 34).

There is no scope under the authority of article 79 of the Civil Practice Act for resolution of issues involving claims of creditors and certainly no authority to construe the destruction of the trust. The claim is rejected without prejudice to resort to a plenary action or as the claimants may otherwise be advised (Civ. Prac. Act, § 1308; Ninth Annual Report of N. Y. Judicial Council, 1943, pp. 308-310; Matter of O’Shea [Reilly], 21 Misc 2d 597; Matter of Roberts, 18 Misc 2d 599; Matter of Reilly, 17 Misc 2d 1077, affd. 3 AD 2d 1001; Matter of Burton, 132 N. Y. S. 2d 563, 564; Matter of Norwood, 92 N. Y. S. 2d 185, 186). The summary proceeding relating to express trusts made by living persons or by last avíII and testament was intended to dispense with the cumbersome details of a plenary action in regard to settlement of accounts and construction of the trust. Claims of creditors unrelated to the trust or destruction of the trust, as such, are beyond the authorized jurisdiction of the special proceeding (cf. Matter of Fields, 193 Misc. 781, 782, affd. 280 App. Div. 811). Settle order.

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Irving Saypol, J.

Upon the submission of this special proceeding to settle the final account of the trustee of this inter vivos trust (Civ. Prac. Act, art. 79), decision ivas withheld pending justification of the item in the account showing premature payment, without judicial approval, of $3,750 for legal services and $23.78 disbursements incidental to this proceeding (Matter of Bucherer, N. Y. L. J., March 12, 1959, p. 12, col. 3). An acceptable showing is now made by affidavit of legal services Avith proof of service on all interested parties. No objection has been interposed and, accordingly, the account is settled and allowed.

The problem posed by the petition regarding a creditor’s claim for $1,592.40 legal services, unrelated to this trust, is supported by the answer and affidavits of the claimant. The contention is that this trust for the benefit of and under the exclusive control of the settlor is void as to past or future creditors, including the claimants (Personal Property Law, § 34).

There is no scope under the authority of article 79 of the Civil Practice Act for resolution of issues involving claims of creditors and certainly no authority to construe the destruction of the trust. The claim is rejected without prejudice to resort to a plenary action or as the claimants may otherwise be advised (Civ. Prac. Act, § 1308; Ninth Annual Report of N. Y. Judicial Council, 1943, pp. 308-310; Matter of O’Shea [Reilly], 21 Misc 2d 597; Matter of Roberts, 18 Misc 2d 599; Matter of Reilly, 17 Misc 2d 1077, affd. 3 AD 2d 1001; Matter of Burton, 132 N. Y. S. 2d 563, 564; Matter of Norwood, 92 N. Y. S. 2d 185, 186). The summary proceeding relating to express trusts made by living persons or by last avíII and testament was intended to dispense with the cumbersome details of a plenary action in regard to settlement of accounts and construction of the trust. Claims of creditors unrelated to the trust or destruction of the trust, as such, are beyond the authorized jurisdiction of the special proceeding (cf. Matter of Fields, 193 Misc. 781, 782, affd. 280 App. Div. 811). Settle order.

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21 Misc. 2d 566, 196 N.Y.S.2d 439, 1959 N.Y. Misc. LEXIS 2382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-accounting-of-bank-of-new-york-nysupct-1959.

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