
    STRUBBE v. KINGS COUNTY TRUST CO. et al.
    (Supreme Court, Appellate Division, Second Department.
    April 26, 1901.)
    1. Guardian and Ward—Jurisdiction of Supreme Court.
    The supreme court has general jurisdiction and control over guardians in relation to the care and control of the person and property of wards.
    8. Same—Necessaries Furnished Ward—Action^-Sufficiency of Complaint.
    A complaint in an action for necessaries furnished a ward alleged that the goods were furnished at the request of the father of the ward, who was the guardian of his person, on his representation that he would pay therefor from the money received for his support from the guardian of his estate. It was also alleged that the guardian of the estate paid the amount of plaintiff’s claim to the father, who was insolvent, and that the latter appropriated the same, and that the. estate of the ward' was diminishing, and that the guardian refused to pay for the goods. Held not to state a cause of action against the guardian of the estate.
    Appeal from special term, Kings county.
    Action by Henry G-. Strubbe against the Kings County Trust Company and others to recover the value of necessities furnished wards of the defendant. From a judgment sustaining a demurrer to the complaint, the plaintiff appeals.
    Affirmed.
    „ Argued" before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.
    Gail Laughlin, for appellant.
    George Y. Brower, for respondents.
   WOODWARD, J.

It will be conceded, in harmony with a long line of authorities, that this court has general jurisdiction over guardians. So -far back as the days of Grotius we are told that guardians “are bound to do everything of importance with the knowledge and advice of the orphan chamber, unless it has been excluded by last will; but, even when this is the case, the court always retains its upper guardianship in case of need.” Introduction to Dutch Jurisprudence, c. 9, § 2. His great contemporary, Domat, lays down the proposition that “the tutor may lay out all expenses that are necessary, useful, or decent for the affairs of the minor, for repairs, for charges of lawsuits, for a journey, and on other such like occasions, according as the quality of the minor’s estate, the nature of affairs and circumstances, may require. And, in case there be any doubt about the usefulness or the necessity of the expenses, he ought to get them regulated by the judge.” 1 Dom. Civ. Law, § 1301. In distant Hawaii, likewise, the rule is recognized that “what a guardian may spend is the income, or so much thereof as may be required. He may not reduce the principal, as he may not sell the real estate without license from the court.” In re Neville’s Estate, 4 Haw. 289, 291. So it was held in Re Hubbard, 82 N. Y. 90, 92, that “the power. formerly possessed in this state by the chancellor is now vested in the supreme court, which exercises, through its judges, the same jurisdiction over infants in awarding the custody and care of their persons and property as was possessed and exercised by that officer.” See Brown v. Snell, 57 N. Y. 286, 292, and authority there cited. But the question now before us is not, as one might suppose, one of jurisdiction, but involves a question of law. We are to determine whether the complaint sets forth facts which, if true, would entitle the plaintiff to any relief whatever. That is the test Toy which a demurrer is to be tried under the practice now prevailing (Kain v. Larkin, 141 N. Y. 144, 150, 36 N. E. 9), and we are called upon to examine the complaint in the light of this .rule. It may be proper, however, to remark that we find no authority which supports the theory that the court, in becoming the guardian of infants, assumes any obligations of a like character in behalf of persons dealing with the guardians of the persons of such infants. These must continue to look after themselves. The action is brought to recover from the estate of certain infants in the hands of the Kings County Trust Company as the guardian of their estate the value of some merchandise of the character recognized as necessaries supplied to and used by said infants; John B. Reilly, the guardian of the persons of the infants, and the trust company, as the guardian of the estate of said infants, being included among the defendants. The facts fairly to be gathered from the complaint are these: That the infant defendants are the owners of an estate in personalty of the value of about $28,000, of which they are entitled to possession on arriving at the age of 21 years, respectively; that the defendant John B. Reilly is the father of the infant defendants, and has been duly appointed as the guardian of the persons of such defendants; that the defendant the Kings County Trust Company was, on or about December 28, 1898, appointed guardian of the estate of the said infants, together with a brother, who has since become of age, and disposed of his interest in the estate, under a decretal order of the surrogate’s court of Kings county, and received the estate; that since such appointment said trust company, as guardian of the estate, has paid to said John B. Reilly, as guardian of the persons of said infants, and to other persons, for the maintenance and support of said infants, divers sums of money, leaving in the hands of the said trust company much less than when said company was first appointed; that between November 27, 1897, and January 31, 1900, the plaintiff had supplied at the instance and request of the said John B. Reilly, as the guardian of the persons of said infants, meats and groceries amounting in value to about $1,500; that these articles were furnished upon the credit of the said infants, plaintiff relying upon the statement made by the said guardian, John B. Reilly, that the estate of said infants was ample security therefor, which plaintiff verified by inquiry, and that said Reilly, guardian as aforesaid, promised that said supplies would be paid for out of the estate of said infants with funds passing through his hands as such guardian; that said Reilly paid at different times sums of money upon this account from the moneys coming to him from the said estate of the infants-, reducing the total amount to about $1,250; that said Reilly has received moneys of said infants far more than sufficient to have paid plaintiff’s claim since the same accrued, but that he has applied the same, or a part thereof, to his own uses and purposes, and not wholly in discharge of the claims and demands against said defendants, and in derogation of ihe rights of plaintiff arid other creditors; that said Reilly is insolvent, and was and is of no personal responsibility; that he has applied, and will continue to apply, the moneys coming into his hands as suóh guardian to his. own uses, and not to the discharge of just claims against said infants, unless he is restrained by the courts; that plaintiff has. demanded the payment of this claim both from Said Reilly and from the trust company as guardian of the estate, but that both said defendants have failed to pay the same; that the estate of said infants is steadily diminishing in principal, and, as said infants mature, their respective shares and interests will be páid over to them, and this plairitiff’s security will be diminished; arid plaintiff fears and apprehends that he will lose his claim by reason. of the exhaustion of the principal and interest of said shares and estate. Conceding álí of these allegations to be true, has the plaintiff stated facts sufficient to Constitute a cause of action against the estate; of these infants? for this is the object sought. "There is no suggestion that the. defendant the Kings County Trust Company hás made .any improper disposition of the funds; or that it has in any manner departed' from the directions in the decree under which it is acting as the guardian of the estate of these infants. It is not suggested that th’e goods were purchased or delivered at the request of the guardian of the estate, nor that the Kings County Trust Company; has neglected or. refused to provide for the necessaries of these infant wards. On .the contrary, plaintiff alleges that the defendant John B. Reilly has “received moneys of said infants far more than sufficient to have paid plaintiff’s claim since the saíne accrued,” and he likewise alleges .that the goods' were sold and delivered upon the promise of the said Reilly “that said supplies would be paid for out of the estate of. said infants with the funds passing through his hands as such guardian.” It appears from the plaintiff’s own statement of the case that the estate of the infants has already placed in the hands, of the defendant Reilly sufficient funds to meet the demand; that the goods were sold and delivered, not on the order or with the knowledge of the Kings County Trust Company, but upon the strength of the assurances of the defendant Reilly that he would pay the same out of the funds which we may assume were directed to bé paid to him by the Kings County Trust Company. The fact that the plaintiff, under these circurristances, has continued to furnish goods until his bill aggregates something over $1,500, on which only about $300. has been paid, although he knew that the defendant Reilly was getting an allowance from the defendant the Kings County Trust Company every three months, is- not calculated to appeal strongly to the court as the guardian of the rights of the infants.- As we have already suggested; the court, whatever its relation to the infants, is not the guardian of third persons dealing with them; and, it appearing that the estate has made provision for paying for these necessaries, it is difficult to understand how it may be claimed that a cause of action is stated against the guardians of that estate by showing that the defendant Reilly may have misappropriated such funds. If the plaintiff, knowing the fact that the defendant Reilly was getting money every quarter (and he claims to have' iriade inquiries in regard to the matter), chose to continue to furnish supplies upon the promises of the defendant Reilly, he may have a cause of action there, but he has not stated any cause of action against the estate of the infants, nor shown any reason why this court should interfere with the guardianship of the estate by the Kings County Trust Company.

The judgment appealed from should be affirmed, with costs. All concur.  