
    In the Matter of the Application by the Board of Street Opening to Acquire Title to Real Estate of Giovanni Guarino. In the Matter of Mulberry Bend Park. In the Matter of Giovanni Guarino et al.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 18, 1895.)
    
    
      1. Jurisdiction—Exclusive.
    The court of common pleas does not, by reason of having appointed the committee of a lunatic, acquire, under the rule making exclusive the jurisdiction of the court which first acquires jurisdiction of a matter, power to direct the disposition of an award made for land taken in condemnation proceedings.
    2. Lunacy—Award in condemnation proceedings.
    An award for land taken in condemnation proceedings is real estate, and .the committee of a lunatic husband, who held such land in entirety with his wife, is not entitled to its possession.
    3. Same—Compensation oe committee.
    The question as to what should be allowed to the committee of a lunatic for his compensation and counsel fees and his claim against the lunatic for board and maintenance and the costs in lunacy proceedings, should not be determined in a proceeding to compel the payment to him of an award for land of a lunatic taken in condemnation proceedings, but is a matter to be passed upon when the committee accounts in the court of his appointment.
    Motion to confirm the report of a referee in proceedings for the condemnation of land.
    
      
      Weelces Bros, and William Gasten, for motion; Andrew G. Oropsey, opposed.
   O’Brien, J.

This is a motion by the committee of the estate of Giovanni Gnafino, who was adjudged a lunatic, to direct the chamberlain to pay to him, as committee, the whole of an award in condemnation proceedings for the value of real estate of which the lunatic and his wife were seised as tenants by the entirety. It comes up upon the report of a referee to whom it was referred to take and report with his opinion. He reported that the fund should be deposited in a trust company, to be invested ; that one-half of the income from the investment should be paid to the committee, and the other half to Julia Guarino; that the attorneys who appeared for the Guarinos in the condemnation proceedings should have a lien" on the award for $1,102, for their services ; and that the taxes on the property should be paid out of the income of the property.

It is conceded that the estate acquired by husband and wife was one by the entirety ; that the awards, being the proceeds of such real property,, are held by the same tenure; that the husband and wife are life tenants in common, as to the usufruct of these proceeds, during their joint lives, the survivor to take the whole of the principal. Bertles v. Nunan, 92 N. Y. 152, 156; In re Blauvelt, 131 id. 249; 43 St. Rep. 285; In re Camp, 126 N. Y. 383; 37 St. Rep. 767. notwithstanding such concessions, the committee excepts to the conclusions reached by the referee, and insists that as the committee was appointed in a proceeding in the court of common pleas, which adjudged the husband a lunatic, the question of the disposition of the awards should be referred to that court, upon the ground that, having first assumed and acquired jurisdiction, such jurisdiction was exclusive, and that if this position is not-tenable, and this court should assume jurisdiction over the disposition of the awards, then one-half of the principal should be paid to the committee, upon giving a bond; that the attorneys who appeared in the condemnation proceedings should have no lien upon the fund; and that the taxes should not be deducted. A brief consideration of the questions thus presented will lead to the conclusion that the referee was correct in his recommendations.

It is true that the court of common pleas first exercised jurisdiction over the person and property of the lunatic, and such jurisdiction being concurrent with the supreme court, and because first exercised, exclusive (Code Civ. Proc. §§ 2320, 2344), this court with respect to matters over which such court of common pleas had jurisdiction, would not interfere. In regard, however, to the disposition of awards made in condemnation proceedings for the purposes of public parks, the court of common pleas has no jurisdiction ; that having been conferred upon the supreme court by chapter 320 of the Laws of 1887, which expressly provides for the payment into the supreme court, “ to be secured, disposed of, improved and paid out as the said court sitting at a general term for said district shall direct.”

This court having jurisdiction, therefore, we pass to a consideratian of the second question presented,—as to whether or not the awards should be divided, and half paid to the committee, and half to the wife. We do not think the committee is entitled to the possession of any award, but that he is only entitled to collect one-half of the income ; and we think that the suggestion of the referee that the entire award should be deposited in a trust company, to be retained until the death of one of the tenants by the entirety, and then paid over to the survivor, is both legal and just. It has been many times held that the proceeds of real property sold by the court, belonging to lunatics or infants, will be considered real estate, so long as the incompetency continues. On the death of the lunatic or infant the money will go to his heirs. Horton v. McCoy, 47 N. Y. 21. The-rights of the parties, therefore, are not affected by condemnation, and each has the same rights in the award as he or she formerly had in the land itself; the sum awarded, for all purposes, to be regarded as real estate. Each tenant by the entirety is seised in the whole estate, and to permit the committee to have the absolute control of one-half of the money in which the wife has an interest would be to wrest it from her, and award its custody to a stranger. Upon the husband’s death the wife instantly becomes entitled to the whole fund, and, even though a bond were given by the committee, the wife would not then receive the money, unless it was voluntarily paid over to her, but would have, as a substitute, a right of action on a bond. Upon no theory can we predicate the committee’s right to the possession and custody of one-half of the award. At best, he is but a mere bailiff, or servant, and has no title to the property. Pharis v. Gere, 110 N. Y. 336; 18 St. Rep. 534. We think, therefore, thas the fund should be held entire, and, as already intimated, the income should be divided; one-half going to the wife, and the other half to the committee.

Upon the remaining questions,—as to the lien of the attorneys who appeared in the condemnation proceedings, and the deduction of the taxes from the interest allowed on the awards, or the income from the estate,—we think the referee was right. As to what the committee should be allowed for his compensation and counsel fees, and his claim against the lunatic for board and maintenance, and the costs in-the lunacy proceedings, these should not be determined in this proceeding, but are matters to be passed upon when the committee accounts in the court of common pleas, where he was appointed. The disposition of the'awards, therefore, should be made in accordance with the views herein expressed.

All concur.  