
    In the Matter of the Petition of Fernando Baltes, as Executor, etc., of Edmund Waring, Deceased. Union Trust Company of New York, Appellant; Fernando Baltes, as Executor, etc., of Edmund Waring, Deceased, Respondent.
    
      Motion and order — an improper procedure to have an agreement declared void and d trust fund paid over.
    
    An adjudication that an agreement, under which a trustee has acted, is void, and that the trustee deliver the trust fund to a person claiming to be the owner thereof, cannot be obtained in a proceeding instituted by the service of a copy of a petition and a notice of motion upon the trustee, as relief of that nature can be granted only in an action.
    Appeal by the Union Trust Company of Hew York from a judgment of the Supreme Court in favor of the petitioner, Fernando Baltes,. as executor, etc., of- Edmund Waring, deceased, entered in the office of the clerk of the county of Hew York on the 3d day of January, 1900, and also from a decree and order made at the Hew York Special Term and entered in said clerk’s office on the 30th day of December, 1899, directing the said Union Trust Company to pay to the petitioner the sum of $130,446.25, except so much thereof as provides for a stay of proceedings pending the appeal, and dispenses with the giving of security by said Union Trust Company.
    
      Wheeler H. Peckham, for the appellant.
    
      Charles Haldane, for the respondent.
   McLaughlin, J.:

This proceeding was begun by the service of a notice of motion and a copy of á petition upon the appellant, the Union Trust Company of Hew York. The petition, among other things, alleged that the Union Trust Company of Hew York held as trustee certain property which belonged to the petitioner as executor of the last will.' and testament of Edmund Waring, deceased.. The relief demanded was that a certain agreement mentioned in the petition bearing date the 19th day of February, 1887, and all acts of the Union Trust Company done in pursuance thereof, be declared void, and that the Union Trust Company be directed to pay to the peti-‘ t-ioner the sum which it held, together with interest thereon from a day specified.. The. answer interposed by the .Union Trust Company, which was the only party served, denied, the right of the petitioner to the relief asked, upon the ground, among others, that the court had no jurisdiction upon a petition to entertain the proceeding or to determine the matters concerning which relief was asked. Upon the petition and answer' and the papers therein referred to, the court ordered that the petitioner, as executor of the last will and testament of Edmund Waring, deceased, do recover and have judgment against the respondent, the Union Trust Company 'of Hew York, in the sum of * * * one hundred and thirty thousand four hundred and forty-six and 25/100 ($130,446.25) dollars.” It is from this judgment or order, whichever it may be called, that this appeal is taken.

We are of the opinion that- the appeal is well taken. There is no provision of law, so far as we have been able to discover, which provides that the relief granted in this proceeding may be obtained, upon a petition alone. The order made in effect not only adjudicates as to the validity of the agreement referred to, but also passes upon and determines the title to property. It is a fundamental principle of the law that the title to property can be determined only where a trial is had in an action brought for that purpose. Under the law, certainly as administered in this country and in England, the court has no jurisdiction or power to summarily pass upon or determine title to property in any other way. It is a novel and somewhat startling proposition that the court has the power to determine the validity of an agreement, or to determine the title to or rights in property upon ex parte affidavits. It is undoubtedly true, as contended by the respondent, that where the proceeding relates solely either to the appointment or removal of a trustee, the court has power, upon affidavits, to take jurisdiction of the matter and either to appoint or remove as the justice of the case may require. But that is not this case. Here, it is not only sought to determine that an agreement under which the appellant acted, and by which the moneys referred to in the petition were actually distributed, was void, but in addition thereto that the appellant is liable to pay the sum which it has been directed to pay Its liability in this respect must be determined as liabilities are in other cases determined and that is by action. (Matter of Petition of Livingston, 34 N. Y. 569; Matter of Van Wyck, 1 Barb. Ch. 565; Hill Trust, *194.) The cases cited by the learned trial justice, in the opinion delivered by him, are not in point. In each of those cases it will be found upon an examination that actions had been brought and were actually pending, and that the orders made were something incident to the progress of the litigation, over and concerning which the court had obtained and had jurisdiction. There is no jurisdiction in the court, and from the very nature of things ■there cannot be, unless especially conferred by statute, to enter a judgment determining the rights of parties to property in the summary way in which it was done in the order appealed from. A trustee appointed by the court is- governed in every respect by the same rules of law as one appointed by consent of parties; and whenever the court, either upon its own motion or otherwise, calls upon such trustee to account, it must do so in exactly the same manner and by the same methods of procedure that trustees appointed by consent of parties are called upon to account.

We are of the-opinion, therefore, that "the judgment appealed from must be reversed and the petition dismissed, with costs in this court and in the court below, without prejudice, however, to the right of the petitioner to bring an action for the relief demanded in the petition herein. ' Having reached this conclusion, we think it would be improper for us to express an opinion as to the other questions raised.

Van Brunt, P. J., and Ingraham, J., concurred ; Rumsey,. J., concurred in result.

Judgment reversed and petition dismissed, with costs in this court and in the court below, without prejudice to the right of ■ petitioner to bring action for relief demanded in petition.  