In re the Judicial Settlement of the Intermediate Account of the Columbus Trust Co.

261 A.D. 1097, 26 N.Y.S.2d 985, 1941 N.Y. App. Div. LEXIS 8957

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 1941
• Status: Published

Opinion

Appeal from so much of a decree of the Surrogate’s Court, Orange County, settling the intermediate account of a trustee, as denies the application of the trustee to charge against the trust the sum of $3,930.04, which the trustee paid out of its own funds for land and water taxes in arrears, except in so far as the trustee is permitted to recoup the sum of $248.82 out of future income. Decree, in so far as appealed from, unanimously affirmed, with one hill of costs to respondents, payable by the appellant personally. The fact that the appellant, as trustee, turned over to the life beneficiary the interest on a mortgage investment paid by the owner of the property on which the mortgage was a lien, constitutes no justification for its gross negligence in failing to enforce the independent obligation of the owner to pay the carrying charges, including taxes. The appellant permitted the owner to default in payment of taxes for a period of five years, to its knowledge. During that period it made no attempt to sell the property, to obtain an assignment of rents or to foreclose the mortgage and have a receiver appointed. It did not ascertain the worth of the property and determine the amount of the gross income which should have been derivable by proper management, or check the operating expenses. Present —■ Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ.