
    Cohen v. Hazard et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    Trusts—Appointment of Trustee—Powers of Supreme Court.
    In an action by a mortgagor against the trustee of the mortgagee’s estate, to redeem the mortgaged premises, it appeared that defendant was appointed by the surrogate to succeed a deceased trustee. The mortgage was in the possession of the deceased trustee’s administrator, who refused to surrender it, contending that the administration of the trust was vested in the supreme court, and that the surrogate had no power to appoint the trustee. Held, that an order of the supreme court directing defendant to satisfy the mortgage on payment to him of the amount due was a sufficient execution of the trust by that court.
    Appeal from special term, Hew York county.
    Action by George J. Cohen against Theodore K. Hazard, administrator of Jabez II. Hazard, deceased, and Albert W. Seaman. Defendant Hazard appeals from a judgment entered on the pleadings for plaintiff.
    Argued before Van Brunt, P. J., and Bartlett, J.
    
      Charles H. Kitchell, for appellant. George W. Ellis, for respondent.
   Van Brunt, P. J.

This action was brought for the purpose of redeeming the premises therein mentioned from a bond and mortgage thereon by paying the amount due thereon and obtaining a satisfaction piece of said bond and mortgage. The complaint alleged that the mortgage in question was given to one .Jabez H. Hazard, as trustee under the last will and testament of Eliza Eagle, deceased; that said trustee died in December, 1887, and that in February, 1888, the surrogate’s court assumed to appoint the defendant W. Seaman testamentary trustee in the place of said Hazard, deceased, and that said Seaman entered upon the discharge of his duties as such trustee; that prior to the commencement of this action the plaintiff tendered to the defendant Seaman the amount of the mortgage, with interest thereon, but the defendant refused to receive the same, or to deliver up the bond and mortgage to be canceled, alleging that the said bond and mortgage were in the custody ot the defendant Theodore K. Hazard, who declined to surrender the same. -.The defendant Hazard, answering the complaint, alleged that Jabez H. Hazard, the trustee mentioned .in the complaint, was not appointed under the will of Eliza Eagle, deceased, but by an order of the supreme court, in place of the trustee appointed by said will, and that said Jabez H. Hazard died, and the defendant Theodore K. Hazard was duly appointed administrator of said Jabez H. Hazard, and that said trust upon the death of Jabez H. Hazard vested in the supreme court, and can only be acquired or executed by a trustee appointed by the supreme court, and that the order made by the surrogate court, appointing the defendant Seaman as trustee, was without jurisdiction and void. And said Theodore K. Hazard further answered that he had duly commenced an action in the supreme court for an accounting in respect to the trust funds, and that in April, 1888, upon the application of the defendant Seaman, an order was made by the surrogate’s court, calling upon said defendant Hazard to account in that court, and it was ordered that until the settlement of the account, or the further order of that court, he retain possession of the papers of said estate, to enable him to make up his accounts, etc. Upon these pleadings a motion was made for judgment, and the court ordered and adjudged that upon payment by the plaintiff to Seaman as testamentary trustee under the last will of Eliza Eagle, deceased, of the amount due on the mortgage,.said Seaman deliver to the plaintiff the usual satisfaction piece, and that the plaintiff have delivered up to him by whomsoever holds possession thereof the said bond and mortgage and all deeds and papers relating to the mortgaged premises.

Some point was raised in regard to the form of this application upon the argument of this appeal. This question cannot now be discussed, because the defendants submitted themselves to the .jurisdiction of the court, and made no objection to the manner in which the application was made, and consequently cannot now raise the objection, no such objection appearing upon the record. It is not necessary to determine whether the defendant Seaman was duly appointed by the surrogate as trustee, or whether the surrogate had no power to make such appointment. If the surrogate had power to make such appointment, then the judgment of the court was proper in that he was the testamentary trustee, and should satisfy the mortgage. If, however, the trust devolved upon the supreme court, and the supreme court was the trustee, it had a right'to execute the trust by some person appointed for that purpose, and to direct Mr. Seaman, as its officer or agent, to satisfy the mortgage, and receive payment thereof, and therefore by the judgment which the court has rendered it has executed the trust reposed in it'in the manner provided by statute. It seems to be reasonably clear that the defendant Hazard should not be permitted to stand in the way of a satisfaction of this mortgage, which the mortgagor desired to pay off, and that the contest between these rival trustees should not compel the plaintiff to keep this mortgage upon his premises, and it was eminently proper for the court upon this state of facts to have rendered the judgment which it did, whether Seaman was or was not duly appointed trustee by the surrogate’s court. As already said, if he was so duly appointed trustee, the payment was directed to be made to the proper person. If he was not so duly appointed, the court was executing the trust reposed in it in the manner prescribed by statute, and was consequently authorized to make the j udgment, and the same should be affirmed, with costs.

Bartlett, J., concurs.  