
    In the Matter of the Application of Mary Alice Almont Fleming. Mary Alice Almont Fleming, Appellant; R. S. Livingston and Others, Respondents.
    
      J’m'tition — money deposited to the credit of an action, ordered paid to one indicted for Hie murder of her mother, upon whose death her right depended.
    
    “The petitioner applied, for an order directing the chamberlain of the city of New York to pay to her the moneys which had been deposited with him to the credit of a certain action in partition, the decree in which directed that the moneys in question should be paid to the petitioner upon the death of her mother, who died in August, 1895.
    'The chamberlain refused to pay oyer the money except upon the order of the court, and the petitioner thereupon applied for such order; but it appearing that an indictment was pending against her for the murder of her mother, the court denied the application, granting leave, however, to renew the same after a disposition of the indictment should have been made.
    
      field, that the application was improperly denied;
    'That the petitioner had a legal right to the present enjoyment of the moneys, which right could not be denied to her, merely because she was under indictment for the murder of her mother;
    ■That the fact that the granting of the application might prejudice the case of the People upon the trial of the indictment was immaterial.
    Appeal by the petitioner, Mary Alice Almont Fleming, from an order of the Supreme Court, made at the New York Special Term on the 26th day of March, 1896, and entered in the office of the clerk of the county of New York, denying the petitioner’s motion for an order confirming the report of a referee and disregarding or overruling the opinion of the referee and denying her application Tor an order directing the chamberlain of the city of New York to pay her a certain sum of money deposited with him to the credit of a certain action in partition, together with the accumulations thereof, except from so much of said order as directs that the chamberlain of the city of New York pay the fees of the said referee and the charges of the stenographer on said reference.
    
      Gratz Nathan, for the appellant.
    
      George H. Yeaman, for R. S. Livingston and others, respondents.
    
      Clarence M. Foster, guardian ad litem, for Florence Baker and others, respondents.
    
      Frank D. Tansley, for George L. Reeder, and guardian ad litem of Elsie Reeder, respondents.
    
      Henry A. Vieu, for Cora M. Brown and others, respondents.
   Barrett, J.:

By the provisions of a decree in partition made by this court in May, 1870, certain moneys (part of the proceeds of a sale under the decree) were deposited with the chamberlain of the city of New York, with a direction that such moneys should be paid to the petitioner (who was then an infant) upon the death of her mother. The petitioner’s mother died in August, of last year, and thereupon the petitioner applied to the chamberlain for the moneys, but that officer declined to make the payment without an order of the court. Whereupon this proceeding was instituted. The only ground upon which the application was contested was that an indictment had been found against the petitioner for the murder of her mother. Upon that fact, and upon that alone, her application mas denied, with leave, however, to renew the same “ after a disposition shall have been made of the indictment pending against her.” The petitioner appeals, claiming that her right to en joy presently that to which she has the clear legal title should not thus have been postponed. We think she is right in this contention. The learned judge at Special Term concedes that even a conviction upon the indictment would not be legal proof of the fact of the murder. In this view he is clearly right. Though the issue be the same, the parties are not the same. The respondents here would not be bound by an acquittal there. The converse must be true. If, then, a conviction would not be binding, what shall be said of an indictment, which is but an accusation ? It is not even permitted to discredit a party or a witness by showing upon cross-examination that he has been indicted. It was said by Finch, J., in The People v. Irving (95 N. Y. 544): “We have held of late that mere charges or accusations, or even indictments, may not so be inquired into, since they are consistent with innocence and may exist without moral delinquency.” It seems quite clear then, upon the record, that no legal obstacle stands between the petitioner and the enjoyment of that to which she has the legal right. This, too, is conceded by the court below. The learned judge denies the right to immediate enjoyment only because the petitioner’s acquittal in this proceeding might prejudice the People upon the trial of the indictment. This, however, is but a vague apprehension. The proceedings here would be inadmissible upon the criminal trial. The opposing parties here are not complainants there. Where, then, the prejudice ? Surely not that perchance the jury in the criminal action may hear of the civil proceeding, and possibly be affected by its result. That is too unlikely and too remote to justify the withholding of an undoubted property right. But even if the apprehension were more serious that would not justify the indefinite postponement of the petitioner’s enjoyment. There are two sides to this question of prejudice. The petitioner is prejudiced in her property rights by the refusal to act upon her petition. She may even need the fund in question to provide for her proper defense upon the criminal trial. Are the courts to grant or deny civil rights upon a balancing of expediencies? We think not. The petitioner’s application should be granted or denied upon the facts properly before the court in this proceeding; in other words, upon the pleadings and proofs of the parties. The court should not deny justice to the parties immediately before it upon the notion that the public good may be promoted by its temporary refusal to proceed according to law. What, then, are the allegations and proofs in this proceeding? The court below suggests that “ by her application for the fund the petitioner solicits the equitable intervention of the court.” This is hardly her position. She demands her legal right. It is those who would deprive her of that legal right who must come into equity. (Ellerson v. Westcott, 148 N. Y. 149.) If her legal rights have resulted from her iniquity,, that must at least be pleaded and proved before a court of equity will prevent her from enjoying its fruit. Here we have not in the’ entire record a single allegation from any one that the petitioner’ murdered her mother. There being no allegation, there is naturally no proof or attempt at proof. It may be said that the infants could not well make such an allegation. But that cannot be said of the adults. And even infants cannot deprive people of their legal rights otherwise than secundum allegata et probata. Thus we have neither allegations nor proofs. This woman comes and asks for what in law is her own. The answer is: You have been accused of murder. Upon that the court dismisses her from its presence until she shall have secured an acquittal. In our judgment this was a denial of the justice to which, upon the record, she was entitled.

The order should be reversed and the application granted, but, under the circumstances, without costs either of this appeal or in the court below.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Order reversed and application granted, without costs.  