Hamilton v. Faber , 69 N.Y.S. 434 ( 1901 )

Blanchard, J.

This is an application to continue pendente lite a temporary injunction restraining further proceedings in a certain special proceeding pending in this court for the discharge of the defendant Cutting as trustee under the will of Charles Kennedy Hamilton, and to restrain further proceedings in a certain special proceeding pending in the Surrogate’s (Court of the county of New York for the discharge of the defendant Hamilton as trustee under the same will. This action is brought by the guardian ad litem of an infant daughter of Charles Kennedy Hamilton against the trustees of a certain trust created for the benefit of such daughter by the will of said Hamilton for an accounting of said trustees Cutting and- Hamilton and their co-trustee Faber, and for a stay of the proceedings before recited pending the determination of the action, and for the removal of said trustee Faber from such office and disqualifying his brother, who was named as a substitute in the will. It is claimed that the testator Hamilton was interested in the stocks of certain companies consolidated into the American Beet Sugar Company, in which companies, so consolidated, the defendant trustees were individually interested, and that by such consolidation the estate of decedent Hamilton did not receive its fair and' proper proportion of cash and stock in the American Beet Sugar Company. It is claimed that an investigation into the facts and circumstances of the transfer of the various companies to the consolidated company, The American Beet Sugar Company, will be necessary, and it would seem that such claim is well founded. To avoid the necessity of going through the facts of this transfer and consolidation upon the accounting of each trustee in a separate proceeding, and the repetition of the evidence, which must necessarily be rather lengthy, and for the purpose of avoiding the depletion of the trust fund, which such proceedings would undoubtedly entail, an injunction restraining these proceedings is now sought. The complaint herein has been sustained upon demurrer, and the right of a cestui que trust to maintain an action for an accounting is beyond question, even though it does not appear that as a result thereof anything will be found due. Frethey v. Durant, 24 App. Div. 58, 61; Marvin v. Brooks, 94 N. Y. 71, 80; Reading v. Haggin, 58 Hun, 450, 453. It does not, therefore, become necessary to consider in detail the facts concerning the transaction in question to ascertain whether or not the trustees acted properly. The power and right of a court to interfere, in a proper case, to restrain judicial proceedings has frequently been recognized. Erie R. Co. v. Ramsey, 45 N. Y. 637; Schuehle v. Reiman, 86 id. 270, 273; Dinsmore v. Neresheimer, 32 Hun, 204, 206, 207. I think it proper in this case that the injunction should issue. The motion is granted, with ten dollars costs to plaintiff to abide the event.

Motion granted, with ten dollars costs to plaintiff to abide event.