
    In the Matter of the Estate of Franz Flory, Deceased.
    Surrogate’s Court, New York County,
    July 1, 1936.
    
      Berton L. Maxfield, for the petitioners.
    
      Paul Windels, Corporation Counsel, for the chamberlain of the city of New York, respondent.
   Delehanty, S.

The fund deposited with the city chamberlain was “ subject to the direction of this court.” By prior order a part payment was directed. The order then made contained a provision that it was without prejudice to any proceeding by petitioners to enforce their rights in any court. At the time that order was made the chamberlain had on hand in cash only part of the fund which he was directed to hold subject to the order of the court. The chamberlain now urges that the former order was in effect a confirmation of the investment of a balance of the fund and so urges that no further order may be made by the court in respect of the balance of the original fund not yet repaid. There is no doubt of the duty of the chamberlain or of the liability of the city. (Matter of Schmidt v. Chamberlain of N. Y., 266 N. Y. 225; Von Seebeck v. City of New York, 156 Misc. 181.) There is no doubt that, the plenary power of this court (Surr. Ct. Act, §§ 20, 40) permits the making of the order here sought by petitioners. It is not necessary to resort to anything but the former order which expressly reserved the right to petitioner to get further relief. Accordingly, the motion to resettle the order by directing the immediate payment of the balance of the fund is granted.

Submit, on notice, resettled order accordingly.  