
    In the Matter of the Accounting of Oliver L. Jones and John Lyon Gardiner, as Trustees for the Benefit of Martha L. Rutherfurd, Under the Will of Oliver H. Jones, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    Trustee—Accounting—Credits.
    On his accounting, a trastee is not entitled to be credited with payments made by him to the cestui que trust in any other capacity or relation than as trustee. Set off between the parties in different rights will not be allowed in proceedings for an accounting as trustee.
    Appeal by testamentary trustees from surrogate’s decree upon accounting.
    
      Samuel Jones, for app’lts; John S. Davenport, for resp’t.
   Bartlett, J.

Oliver L. Jones and John Lyon Gardiner are trustees for Martha Louise Rutherfurd, under the will of Oliver H. Jones, deceased. They hold in trust a fund of about $25,000, the income of which they are required to pay to the beneficiary in quarterly payments. Being called upon to account in the surrogate’s court, the matter was referred to a referee, before whom the trustees accounted for the income of the fund from October 20, 1877, to January 31, 1884. The accounting did not relate, in any manner, to the principal. By the decree of the surrogate, modifying to some extent the report of the referee, the trustees were charged with $4,674.08, as a balance of income due from them to Mrs. Rutherfurd, and from this decree the trustees have appealed.

They complain that they have not been credited with certain payments made by Oliver L. Jones to Mrs. Rutherfurd between October, 1877, and November, 1880, inclusive. These payments appear to have been made, not on account of the trust fund at all, but on account of the rents of real estate, of which Mr. Jones had the charge, and in which Mrs. Rutherfurd had an interest, In making them, Mr. Jones was not acting as trustee, but in a different relation. His demand to be credited with the payments is, therefore, a personal claim in his own behalf, which he cannot set off against his indebtedness as trustee on his accounting in the latter capacity in the surrogate’s court. Matter of Livingston, 27 Hun, 607; Stilwell v. Carpenter, 59 N. Y., 414, 425.

We think the surrogate correctly held that this individual claim of Mr. Jones against the balance of income in his hands as trustee was a claim of set off between parties in different rights, which could not be allowed in the present proceeding. For this reason, without passing upon the other points considered in the surrogate’s opinion, the decree appealed from should be affirmed, with costs.

Van Brunt, P. J., and Magomber, J., concur.  