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Gould v. Gould

Appellate Division of the Supreme Court of New York, First Department
Dec 22, 1922
203 App. Div. 817 (N.Y. App. Div. 1922)

Opinion

December 22, 1922.

John W. Davis of counsel [ William Wallace, Jr., with him on the brief], for the appellant George J. Gould.

Edgar T. Brackett of counsel [ J. Arthur Leve, George J. Gillespie and Harold Content with him on the brief; Stanchfield Levy, attorneys for George J. Gould, Jr., and Marjorie Gould Drexel; Gillespie O'Connor, attorneys for Kingdon Gould; Griffiths, Sarfaty Content, attorneys for Jay Gould], for the appellants, adult children of George J. Gould.

Samuel Seabury of counsel [ Walter B. Walker, William Nelson Cromwell and Philip L. Miller with him on the brief; Leonard Walker, attorneys for Frank Jay Gould; William Nelson Cromwell, guardian ad litem for Jason Honore Louis Sever de Castellane and others; Sullivan Cromwell, attorneys for George Gustave Marie Antonie Boniface Charles de Castellane and others], for the respondents.

Frederic R. Coudert of counsel [ Howard Thayer Kingsbury with him on the brief; Coudert Brothers, attorneys], for the respondent the Duchesse de Talleyrand.

William A.W. Stewart, guardian ad litem, for the respondents Gloria Gould and others.


This order was made upon the ground that an accounting action is pending between George J. Gould and the estate, in which George J. Gould is claimed by the defendants to have overdrawn the amount due to him, and is largely indebted to said estate. If this fact be shown, these moneys may be impounded for payment of such excess that he has received. This order is interlocutory and simply restrains George J. Gould from prosecuting his claim until a determination of the action.

It is undoubtedly the ordinary rule that an injunction will not be granted in one action staying the proceedings in another action, unless the action in which it is made asks for an injunction. But the action in which this order is made is an administration action which will determine the account of George J. Gould, and, if any moneys are found to be owing to him, those moneys will be directed to be paid to him. If he should proceed in the Surrogate's Court or in any other court to compel the trustees to pay him these moneys, the answer would be that he has been overpaid by the estate in amounts largely in excess of his annual income, which will involve an accounting, which is the object of the action in which this order was made.

A decision is herewith handed down ( Gould v. Gould, 203 App. Div. 807) in which we hold that equity has power in an administration action to remove a trustee, although his removal be not asked for, either in the complaint, or in any answer. These strict rules of practice do not, we think, apply to an administration action, wherein a court of equity has power to make any order which will render effective any decree that it shall render as to the accounts between the parties to that action. Such a power exists as incidental to the right of the court to make an enforcible decree.

While it has not been determined in this action that George J. Gould is owing the estate any moneys whatever, the purposes of the action being to settle the accounts of the parties, and all parties being before the court, I am of the opinion that the court has power in this action to make this order, on the ground that, if George J. Gould has already received from the trust estate or from moneys which should have been applied to the trust estate more than sufficient to pay this income, this income is not owing to him by the estate, and that such fact cannot be ascertained until the conclusion of this action.

In my judgment, therefore, the order should be affirmed, with ten dollars costs and disbursements.

CLARKE, P.J., PAGE, GREENBAUM and FINCH, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.


Summaries of

Gould v. Gould

Appellate Division of the Supreme Court of New York, First Department
Dec 22, 1922
203 App. Div. 817 (N.Y. App. Div. 1922)
Case details for

Gould v. Gould

Case Details

Full title:GEORGE J. GOULD and Others, as Executors and Trustees under the Will of…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 22, 1922

Citations

203 App. Div. 817 (N.Y. App. Div. 1922)
197 N.Y.S. 524

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