General
Hannah M. Hall v. Cyrus M. Strong, as Surviving Trustee under the Will of Eleanor M. Strong, Deceased, Defendant, Impleaded with Kate L. Strong and Others, as Executors, etc., of Cyrus Strong, Deceased
117 A.D. 912·New York Supreme Court, Appellate Division·1907·NY
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Opinion
Third Department,
January, 1907.
Hannah M. Hall v. Cyrus M. Strong, as Surviving Trustee under the Will of Eleanor M. Strong, Deceased, Defendant, Impleaded with Kate L. Strong and Others, as Executors, etc., of Cyrus Strong, Deceased.
Accounting—allegations by-executors- sued for an accounting that the surviving trustee, to whom they must turn over certain funds, is incompetent are not irrelevant because they reflect upon the character of such trustee. . '■
Appeal by the plaintiff from ah order entered in the Tompkins county clerk’s office on the 17th day of September, 1906, denying plaintiff's motion to strike out certain matter from the answer of certain defendants as irrelevant and scandalous, '
[MAJORITY — Per Curiam:]
Per Curiam:
The court will not upon this motion, determine the sufficiency of this answer. For will.it determine the rights of the defendants as remaindermen under the will of Eleanor M. Strong. The action seeks an accounting from the defendants for trust funds held by their testator. Such trust funds as may be found would naturally be directed paid to the surviving trustee. The defendants, however, by answer, complain that the surviving trustee is not competent to take Charge of said trust funds and that by reason of their interest as remaindermen they ask his removal. If the allegation in defendants’ answer be true, and if defendants have an interest as remaindermen in this trust fund they would seem to show good grounds why any sum which they shall be decreed to pay shall not be paid to this surviving trustee, and it is difficult to see why the court should not in this action investigate as to whom these moneys should be paid. Assuming, then, that the issue as to the competency of this surviving trustee' is a material issue, the allegations of the answer' are not irrelevant, and if relevant, the fact that those allegations reflect upon character is no ground for expunging them from the record. The order should be affirmed, with ten dollars costs.' All concurred; Parker, P. J., not sitting. Order affirmed, with ten dollars costs ‘and disbursements.