
    In the Matter of the Application of the City of New York for the Transfer and Payment by the Chamberlain of the City of New York to the City of New York of Moneys Transferred to Him by the Surrogate of the County of New York on February 23, 1887, Pursuant to the Order of the General Term of the Supreme Court, First Department, Dated December 30, 1886, and to the Order of the Surrogate’s Court of the County of New York, Dated February 5, 1887, and Continuously Since Their Receipt Held and Now Held as a “ Special Fund.”
    First Department,
    April 22, 1910.
    Public money—fund raised in county of New York—repayment of losses due to defalcations — disposition of residue.
    In 1870 the county of New York, pursuant to a resolution of the board of supervisors, raised a sum of money and paid it over to the surrogate of the county to make good losses suffered by various persons in consequence of defalcations in the -surrogate’s office. The accountant who figured up the losses made too large an estimate owing to lack of information in regard to certain restitutions. This was not discovered at the time, and the surrogate, after the payment of all claims, deposited the residue in a trust company. By chapter 350, Laws of 1884, t.he several General Terms of the Supreme Court were authorized to appoint persons to examine the accounts of the several surrogates’ offices and to report thereon, whereupon the surrogates were required to pay over to the treasurers of their respective counties all "moneys held by them. The fund in question was found, and the General Term of the present First Department ordered that it should be held by the chamberlain of the city of New York (who was also treasurer of New York county) subject to the order of the General Term. It appears that no person has made claim to any part of the fund since it was deposited.
    
      Held, on application by the city of New York, that the city, as successor in title and interest to the county, is entitled to the return of the fund, being the amount in excess of that necessary to meet the purpose of the appropriation; That section 9 of chapter 651 of the Laws of 1892, in relation to moneys “paid into court,” has no application.
    Reargument of a motion to confirm the report of a referee. (See 135 App. Div. 924.)
    
      Theodore Oonnoly, for the motion.
    
      Robert P. Beyer, opposed.
   Per Curiam:

This matter comes before the court on a petition of the city of Mew York by its comptroller, asking that a certain fund now in the hands of the chamberlain, amounting at the daté of the petition to $39,772.08, be paid over to the city of Mew York.

The application is opposed by the Attorney-General, who. asks that the fund be paid over to the State Treasurer under the provisions of section 9 of chapter 651 of the Laws of 1892 (now State Finance Law [Consol. Laws,. chap. 56; Laws of 1909, chap. 58], § 44). This fund is the residuum of a larger sum which was raised by the county of Mew York in 1870 and paid over to the surrogate of the county of Mew York to make good the losses suffered by various persons and estates in consequence of defalcations in said surrogate’s office.

Although the available evidence on' the subject is not always of the first order, the referee has carefully collated and compared such as is available, and has been able to trace satisfactorily the history of the fund.

On January 1, 1870, when- Gideon J; Tucker retired from the office of surrogate of New York county, he handed a letter to his successor, Bobert C. Hutchings, informing him that one James Walker Fowler, who had been assistant surrogate, had received and appropriated to his own use sums amounting to $33,079.65. Appended to this letter was a list of persons and estates who had suffered by these misappropriations, and of the several amounts which each had thus lost. The true amount of these defalcations amounted, according to said list, to $31,079.65, the larger sum mentioned by Surrogate Tucker being evidently the result’ of án error in addition.

This letter was transmitted by Surrogate Hutchings to the board of supervisors with a request that competent persons be appointed to examine into the precise character and extent of the deficiency.

By section 10 of chapter 382 of the Laws of 1870,. passed April 26, 1870, the board of supervisors was authorized and directed to investigate the alleged deficiency in the accounts of the late surrogate, to employ an accountant for that purpose and to provide for the amount of such deficiency, including the same in the taxes for the ensuing year.

From the minutes of the board of supervisors under date of May 26, 1870, it appears that Charles W. Wilbour, an accountant appointed by said board, reported that to replace the several sums unaccounted for with interest to the 1st day of January, 1870, it would require $58,030.29. -The fees of the accountants were.$6,500, and this was evidently included by Wilbour in his estimate, because the amount paid to the surrogate was $51,530.29, being just $6,500 less than the amount reported by Wilbour as necessary to make up the deficiencies. Surrogate Hutchings appeal's to have expended all of this sum, except $13,786.86, in paying the deficiencies.

The evidence on that subject will be returned to later. This sum of $13,786.86 was on May 22, 1871, deposited1 in the Union Trust Company, and constituted with the accretions of interest the fund involved in this application. It was transferred by the surrogate on October 10, 1873, and deposited in the Farmers’ Loan and Trust Company..

By chapter 350 of the Laws of 1884 the several General Terms of the Supreme Court were authorized to appoint persons to examine the books, accounts' and. vouchers, in the several surrogates’ offices, and make report thereon, whereupon the surrogates were required to pay over to the treasurers of their respective counties all .money's and securities tlien held by. them.

The General Term in this department appointed for this purpose William Pitt Shearman, who made a report which cannot ;be found. "

His report was. confirmed by order dated December .30, 1886, to which was appended, a copy of one of the schedules included in his' report. With reference to the fund now in controversy, then represented by a certificate of deposit of 'the' Farmers’ Loan and-Trust Company, the order provides as follows “It appearing that a certain certificate of deposit , in the Farmers’ Loan & Trust ' Company which with the interest thereon to July 1st* 1885, amounts to $25,508.11 (Twenty-five thousand, five hundred and eight 11 /100 dollars) forms part of the aforesaid moneys and constitutes a part of the assets held by. the surrogate in excess of his liabilities and that there is some doubt as to the origin of so much of such excess as is represented by said certificate and as to whether or not it arose otherwise or from the appropriation by the-board-of supervisor's of a sum greater than was needed to serve the purpose for which-such board was by Section 10 ■ of Chapter 382 of the Laws of 1.8.70, authorized to make an. appropriation.

“It is further ordered and adjudged that so much of said moneys, funds and securities as are represented by the said certificate of' deposit with the interest thereon to the time-of payment or. transfer to said Chamberlain together with such interest as shall subsequently accrue "or to be payable thereon to be held by the -said Chamberlain as a special fund subject to the special order of the General Term of this Court.”

The certificate of deposit was turned over to the chamberlain of the city of Hew York (being also the treasurer of the county of Hew. York) on March 19, 1887.

The doubt expressed in the ordér of. the General Term as to the-origin of this fund "may, we think, be resolved from the available evidence.

The. first thing that attracts attention is the large discrepancy between the amount of -the defalcation reported by Surrogate-Tucker ($33,079.65) and the amount- of the deficiencies reported by Wilbour ($58,030.59, less $6,500 accountant’s fees, being net $51,530.29).

There are two reasonable explanations for this discrepancy.

In the first place the letter of Surrogate Tucker shows that he did not include, in his estimate of defalcations, interest on the sums misappropriated, while Wilbour’s report specifically states that his estimate includes interest at seven per cent per annum to January 1, 1870. The referee has computed interest on the amounts specified in Surrogate Tucker’s letter, at the then legal rate, down to January 1,1870, and finds that it would have required $43,590.76 to pay the deficiencies reported by Surrogate Tucker, with interest.

In the second place, the letter of Surrogate Tucker referred only to defalcations by Fowler. The Wilbour report covers all deficiencies. That there were other defalcations than those of Fowler appears reasonably certain, because at some time between January 1, 1870, and March 29, 1870, there was returned to the surrogate by one Wm. B. Aitken mortgages amounting to $7,888, and cash to the amount of $3,346.66 ; total, $11,234,66; and there is other evidence that said Aitken, a clerk in the surrogate’s office, had misappropriated moneys. Wilbour was not an employee of tlie.surrogate’s office; his report was made as of January 1,1870, and was actually handed in very shortly after the above-mentioned restitution by Aitken.

It seems altogether probable, therefore, that the deficiencies reported by him included the sum of $11,234.66, and that he was either ignorant of, or took no note of the return of that sum. If so, the county appropriated, in the first instance, $11,234.66 more than was necessary to meet the then existing deficiencies. This, in our opinion, accounts for the existence of the fund now under consideration.

The evidence as to the disposition made by Surrogate Hutchings of the money appropriated by the board of supervisors is not very satisfactory. It is certain, however, that he received $51,530.29 .and deposited in the Union Trust Company $13,786.86. This leaves $37,743.43 unaccounted for. There is a presumption that the surrogate, a public officer, fulfilled his duty, and it is not going too far to presume that this latter sum was used to pay the deficiencies for the payment of which it had been appropriated.

It will be recalled that the deficiencies reported by Accountant Wilbour, over and above the expenses, amounted to $51,530.29. As has already been pointed out, there was subsequently returned by Aitken $11,234.66 which had apparently been included in the Wilbour report. This would leave $40,395.63 of public .money necessary, to pay all deficiencies, with interest. This is about. $2,652.20 more than the surrogate appears to. have disbursed. It appears, however, from, the letter of Surrogate Tucker that a considerable number of Fowler’s defalcations consisted of small sums. It is not at all improbable that many of those who had suffered losses wei’e ■ paid, and consented to receive, the principal sums due them either without interest or with interest at less than the legal rate. This would easily account for the difference between the amounts apparently due and the amounts apparently paid out by the surrogate. Some confirmation of this view is to be derived from the following:

Shearman?s report cannot be found. There was presented to the referee, however, what purported to be a type-written copy of it in which reference is. made to an old journal kept in the handwriting of one Van Schaick, who was for many years chief clerk in the surrogate’s office, and afterwards himself surrogate. These entries showed that the surrogate had drawn from the appropriation on these several dates, down to August 20, 1871, the aggregate sum of $38,651.59, leaving a balance of the appropriation of $12,878.70,' which, with accrued interest to Februrary 8, 1871, would amount to the precise sum that was on that day deposited in the Union Trust Company.

It is now thirty-nine years since that fund was deposited and more than forty years since the defalcation occurred. In all that time, so far as appears, no claim has been made by any person (other than those paid by Surrogate Hutchings) for payment out of the fund.

It seems that from all these circumstances it is entirely safe to conclude that every claim against the appropriation has long since been paid, and that the fund is the unexpended residuum of the appropriation made by the board of supervisors in 1870.

The next question is, what disposition shall be made of it?

The Attorney-General advances two propositions, first, that the moneys appropriated by the board of supervisors constituted a trust fund; that the county parted with all title to it when the appropriation was made, and although- there does not appear to be any possible cestui que trust, still the fund must remain unimpaired presumably to the end of time. .This proposition, we think, involves a mistaken idea as to the nature of the original fund. The board of supervisors was authorized to make provision for the payment of the deficiencies. Acting upon the best information available it appropriated what appeared to be necessary. As the event proved it appropriated too much. Upon the plainest principles, the city, . as the successor in title and interest to the county, is entitled to the return of the amount in excess of that necessary to meet the purpose of the appropriation. If a trust was impressed upon any part of the fund it was so impressed only upon so much of it as was required to pay the deficiencies, and cannot possibly be extended to the excess not so required.

The Attorney-G-eneral’s second proposition is that the fund should be paid over to the State Treasurer under the provisions of section 9 of chapter 651 of the Laws of 1892 (now State Finance Law [Consol. Laws, chap. 56; Laws of 1909, chap. 58], § 44).

The act applies to moneys “ paid into court,” and contemplates that the moneys to be so transferred shall be those which may be subject to claim.

We.do not think that the appropriation was “paid into court” in the sense in which those words are used in the act. It consisted of county moneys appropriated to pay certain claims which the county assumed, and was intrusted to the surrogate for disbursement, not in his judicial .but in his administrative capacity, for in 1870 he was both a judicial and an administrative officer.

In our opinion the city of New York is clearly entitled to a return of the money, and it should be returned after payment therefrom of the proper referees’ fees and disbursements.

Present — Clarke, McLaughlin, Laughlin, Scott and Dowling, JJ.

Motion granted. Settle order on notice.  