
    In the Matter of the Application of Maxwell Stevenson for a Payment Out of the General Fund of the Supreme Court. In the Matter of the Application of Eloise Kernochan for a Payment Out of the General Fund of the Supreme Court. In the Matter of the Application of Paul E. Stevenson for a Payment Out of the General Fund of the Supreme Court.
    First Department,
    April 22, 1910.
    Court—funds paid into court — plenary power of Appellate Division to reimburse suitors who have lost through unfortunate investment of trust fund— only unclaimed portion of fund available for that purpose.
    Persons wlio have suffered losses through unfortunate investments made by the chamberlain of the city of ¡New York on mortgages are not entitled to reimbursement out of such portions of the general fund of the Supreme Court, Appellate Division, First Department, as are traceable to their sources so that they can be returned pi'o rata to such sources.
    Where there is no known or ascertainable cestui que trust who can make a claim upon a fund, it cannot properly he called a trust fund.
    The English Court of Chancery had, 'and the Supreme Court of this State, as successor of the State Court of Chancery, has plenary power to order payments out of funds paid into court to reimburse suitors whose money paid into court has been lost through unfortunate investments. This power used to be exercised by the General Term and is now possessed by the Appellate.Division.
    But the court will only order such payments to be made out of such portion of the fund as is a dead trust by reason of the fact that the sources thereof are untraceable so that they will forever continue to accumulate..
    Chapter 651 of the Laws of 1892. requiring funds paid into court to he turned over to the State Treasurer after twenty years applies only where there are or ■ may be known or ascertainable claimants. It does not apply to funds the sources of which cannot be traced.
    Motions to confirm the report of a referee.
    
      Wilner, Ganjield, <& Stone, for the motions.
    
      Robert P. Beyer, opposed.
   Per Curiam :

The petitioners are sufferers from an unfortunate investment of their moneys by a former chamberlain in mortgages which, upon foreclosure, resulted in a large deficiency.

Their respective losses appear to have been as follows! MavxlieU Stevenson, $13.616.58; Eloise Kernochan, -$3,599.36; Paul E. , Stevenson, $2,825.99. ■ 1

They ask to have their losses made up to them out of a fund in the hands of the chamberlain known as the general fund of the Supreme Court, • ' .

It appears from a table annexed to the report Of the referee that there have been in the course of years a considerable number of such losses, their aggregate, including interest compounded annually at four per cent down to January 1, 1908, being. $135,794.46. If any of these losses are paid, they should all be paid.so far forth as the available funds, if any, will permit.

Of the petitioners’ money the sum of $64,000. was invested in a mortgage made by one Margaret O’Sullivan. Upon foreclosure the property mortgaged was bought in by the chamberlain and súbse- . quently resold by him at a total-profit of $502.28, amounting at the. date of the referee’s report, with interest, to. $726.06, which sum now stands credited to a special account known as the “ Márgáret O’Sullivan Mortgage Account.” There can be no doubt that the petitioners are entitled to have'this sum paid to them in the proportions in which their moneys were invested in said mortgage, to wit, Maxwell Stevenson, thirty-nine and orie-foiirth per cent-; Eloise Kernochan, thirty-four and one-half per cent; and Paul E. Stevneson, twenty-six and. one-quarter per cent,

• The fund from ■ which the petitioners seek reimbursement is known officially as the “ General Fund of the Supreme Court, - Appellate Division for the First Department.”

It was created under an order , of this court, dated January 6, 1905, by the consolidation of four separate funds or accounts which had been kept by the chamberlain. ■

The, titles by which said funds were known, and the amounts standing to the credit of each when the consolidation took place, were as follows:'

General Fund of the Supreme Court.. . 1'... $10,564 68

Surplus'Balance Account.,.............. 6, 922 65

Interest Account............... ....... 20, 975 49

Contingent Account .................... 5, 518 79

Total...........,........... $43, 981.61

The General Fund of the Supreme Court had its origin in two funds accumulated by the Court of Chancery, subsequently transferred (in 1847) to the clerk of the Court of Appeals, and later to the chamberlain. Its history is carefully traced by the referee and it is unnecessary to set it out in detail here prior to 1865, when it had been reduced by payments made by order of the court to • $17.59.

On December 22, 18.65, the General Term of the Supreme Court made an order directing the chamberlain to transfer to the general fund the difference between simple and compound interest on sums deposited with the Hew York Life Insurance and Trust Company, and in the future to transfer to said fund, annually, interest on interest. Pursuant to this order there was transferred on December 31, 1865, to the general fund from thirty different accounts the sum of $6,913.10. Subsequently other sums were transferred, the total amount of the transfers down to December 29, 1879, being $16,576.26, and numerous payments were made from it, aggregating $11,635.12- Interest upon this fund was credited to it down to December 31, 1884, amounting to $5,605.95. After that date • whatever interest was earned on the fund was credited to the surplus interest account., Its amount, as the referee finds, was $5,881.26. It appears that this fund consisted wholly of interest taken from thirty specified and known accounts, and is, therefore, traceable and in fact has been traced to its sources.

All parties agree that so much of this fund as remains should be returned pro rata to such sources in proportion to the amounts transferred to make up the fund. This amount is, therefore, concededly not available to make good the petitioners’ losses.

The “ Surplus Balance Account ” was made up of small balances of undistributed interest on' surplus moneys, taken from a grea.t number of accounts. It commenced on December 31, 1890, with a credit of $6,918.49, which was increased on December 17, 1892, to $6,922.65. Whatever interest accrued on this sum down to January 6, 1905 (the date of consolidation of the funds), was credited to' the Surplus Interest Account. The referee, estimates it ■ at $2,394.36. '

The accounts from which the fund was made up have been traced and identified. So much of the fund is, therefore, returnable to the sources from which it was derived and should be so returned.

All parties concede this. The petitioners cannot, therefore, be reimbursed-out of this fund.

The Surplus Interest Account, amounting at the time of consolidation to $20,975.49, was made up, in the words of the referee, “ in one way or another, entirely from accumulations of interest on various funds which had been deposited with the Chamberlain in trust,” in the manner set forth in detail in the referee’s report. All of the expert witnesses testified that it would be impracticable to trace the various accounts from which this interest was taken.

As has already been said, however, interest earned on the General iFund of the Supreme Court, estimated at $5,881.26, and interest earned on the Surplus Balance Account, estimated at $2,394.36, were credited to this Surplus Interest Account.” ' This interest should be returned to the respective funds upon which it was earned. The remainder of the fund is absolutely untraceable, and if no payments are authorized to be made out of it,-will go on accumulating until eternity.

The Contingent Account, amounting at the time of consolidation to $5,518.79, was opened on December 23, 1848, and has been credited from time to time with small unclaimed balances of various kinds. It has been as low as $18.61, in 1882, and as' large as $42,735.26, in 1885.' It has been used, as its title indicates, as a contingent account, from which all sorts of payments have been made,' including sums to make good losses oii mortgage investments.

The expert witnesses all agree that it is impossible to tracé the .sources of this fund, so that it can be redistributed, and it is made perfectly manifest by the referee’s report, and the évidence taken by him, that neither of the last two mentioned funds can be traced back to their original sources, except as to certain items of interest above referred to, and that' it is impossible tó credit them back to any accounts so that any person can ever establish a claim to any part of them. They are emphatically “ dead ” funds, which will go on accumulating forever if left undisturbed. There being no known or ascertainable cestui que trust who can make claim upon them, these funds cannot properly be called trust funds. (Matter of Hicks, 170 N. Y. 195). The Supreme Court and its predecessor has always exercised plenary power to order payments to be made out of such funds as this for various purposes, including on more than one occasion the. reimbursement of suitors whose money had been paid into .court and lost through unfortunate investments. This power was vested in the Court of Chancery of England as early at least as 1725, being provided for and recognized by many acts of Parliament. (12. Geo. I, chaps. 32, 33 [1725]; 12 Geo. II, chap. 24 [1739]; 4 Geo. Ill, chap. 32 [1763]; 5 Geo. Ill, chap. 28 [1765]; 9 Geo. Ill, chap. 19 [1769]; 14 Geo. Ill,' chap. 43 [1774], and other similar acts.) This power passed to the Court of Chancery of this State upon the organization of the State, and thence to the Supreme Court. (2 B...S. 173, § 36; Laws of 1847, chap. 280, § 16; Const. 1846, art. 6, § 3; Const. 1894, art. 6, § 1; Code Civ. Proc. § 217.) It was formerly exercised for the court by the General Term thereof, and its jurisdiction is now possessed by the Appellate Division. (Const. 1894, art. 6, § 2.) We consider that the authority and jurisdiction of this court to order payments to be made out of these, last-mentioned funds is fully established, and we consider that a part at least of such funds should be applied to the relief of the petitioners and others similarly situated.

It is contended on behalf of the State Treasurer that the present entire Consolidated Fund should be paid over to him 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). That contention seems to be well founded as to so much of the -fund as was taken from and is to be returned to the General Fund of the Supreme Court and the Surplus Balance Account to which there are known or ascertainable claimants. That act applies only, however, to moneys paid into court, which have remained in the hands of any county .treasurer, or of the chamberlain of the city of Hew York, for twenty years, and to which there are or may be known or ascertainable claimants, and does not. apply to funds like the Interest Account and the Contingent Account to which, as has been said, there are no such claimants.

It is now some time since the referee’s report was signed and his computations of interest are not carried down later than January 1, 1908. In order to make a decree for the distribution of the several funds it will be necessary to have the computations brought down to the present time. It will, therefore, be referred, back ■ to the referee to make the necessary calculations and to draft a form of decree in conformity with the following directions: First: The amount standing'to the credit of “Margaret O’Sullivan Mortgage Account”'shall be ascertained and ratably distributed among the petitioners according to their proportionate interests therein ás found by the referee. Second. The amount now standing to the credit of the “ General Fund of the Supreme Court, Appellate Division, First Department,” shall be ascertained. From this fund shall be paid the fees and disbursements of the referee. Third. The said fund shall' then be disintegrated, and the amount thereof distributed proportionately among the several funds of' which it was created: Fourth. From the Surplus Interest Account shall be paid to the General Fund of the Supreme Court and the Surplus Balance Account respectively the interest which should have been paid into those accounts, but was in fact paid into the Surplus Interest Account, as reported by the referee, together with the estimated amount of interest earned upon said sums and paid into the Surplus Interest Account. Fifth. The General Fund of the Supreme Court and the Surplus Balance Account, as thus reinstated, ■ should then be distributed .among and credited to the several accounts from which they were taken, and the amounts should then be paid over to the Treasurer of the State of Hew York, together with a statement of the several accounts to which they are applicable 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). Sixth. The balance remaining in the Surplus Interest Account and the Contingent Account shall" be consolidated into an account to be known as the General Fund of the Supreme Court, First Department,” and the amount of said fund with the accumulations of interest ascertained.

From this fund will be paid to the petitioners, and to others similarly situated, such proportion of their losses, as may, upon'the coming in of the report, appear to be reasonable, dne regard being had to reserving in said fund a sum which may be applied hereafter to proper purposes. The counsel who appeared before the referee

have rendered most valuable and laborious service in unraveling a very complicated matter, but wé doubt our authority to grant them allowances out of the fund.

Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ.

. Motion granted to the extent stated in opinion, and the matter referred back to referee. Settle order on notice.  