First Department, December, 1913. [Vol. 159. "To entitle the judgment creditor to maintain an action as prescribed in the last section, the execution must have been issued as follows: "1. If, at the time of the commencement of the action, the judgment debtor is a resident of the State, to the sheriff of the county where he resides. "2. If he is not then a resident of the State, to the sheriff of the county where he has an office, for the regular transaction of business in person; or, if he has no such office within the State, to the sheriff of the county where the judgment-roll is filed, unless the execution was issued out of a court, other than the court in which the judgment was rendered; in which case, it must have been issued to the sheriff of the county where a transcript of the judgment is filed." It seems to be plain that the plaintiff failed to lay the necessary foundation for this action. To do so, under the circumstances of the case, the execution should have been issued to the sheriff of Kings county, for it was in that county that the judgment roll was filed. The objection of the defendant Kemp is, therefore, fatal to the maintenance of the action. But even if this objection were not fatal we should still be unable to affirm the judgment appealed from. It is clear that the Special Term was correct in affirming the right of George Kemp's wife to be paid the alimony awarded to her by the orders of the court. Certainly she was entitled, as his wife, to support out of his income. (Wetmore v. Wetmore, 149 N. Y. 529.) The orders fixing the amount of alimony are, while unreversed, conclusive adjudications that the sum of $3,000 per annum is a reasonable sum to be allowed the wife for her support, and they certainly cannot be ignored or set aside in a collateral proceeding, especially in the absence of the wife, who is not a party to the action. The court erred in ignoring the surrogate's decree construing the will of Juliet A. Kemp and in holding that the provision made in that will for the benefit of the two children of George Kemp was intended to provide for them only during infancy. In the first place the Surrogate's Court had ample jurisdiction, as incidental upon its authority to pass upon the trustees' accounts, to construe the will (Garlock v. Vande App. Div.] First Department, December, 1913. vort, 128 N. Y. 374), and the decree construing it was a valid exercise of that authority. It is not open to collateral attack, especially in the absence of the children affected. In the second place we find no support in the will of Juliet A. Kemp for the assumption that she intended that the children of George Kemp should benefit from the trust estate only during their minority. The question is not whether George Kemp "is required, either in morals or law, to support adult children who have married and who do not live with him" (79 Misc. Rep. 516), to quote from the opinion of the learned justice at Special Term, but what provision did Juliet A. Kemp, the creator of the trust, intend as to the benefit her grandchildren should derive from the trust estate. The provision for the payment of $5,000 a year to the two children of George Kemp is not in terms limited to the support and education during infancy, but is made for their use and benefit, support, maintenance and education without limitation of time except the duration of the trust which will terminate at the death of George Kemp. While the necessity for their education may or may not have terminated with their minority, the necessity for their support and maintenance did not end then, nor the desirability of having a fixed income appropriated to their use and benefit. A significant indication that Juliet A. Kemp did not intend that the provision for the benefit of her grandchildren should continue only during their minority is to be found in the fact that the provision is in terms extended to the issue of either of said grandchildren who might die. We are also of the opinion that the court erred in fixing arbitrarily, without evidence, upon the sum of $3,000 per annum as a reasonable amount to be paid to George Kemp for his support and maintenance. There are two rules which seem to be well settled in cases like the present. The first is that the beneficiary of the trust is entitled to receive an income sufficient to support him in the manner in which he has been brought up and to which he has been accustomed to live and in the manner in which the creator of the trust evidently intended that he should live. (Genet v. Beekman, 45 Barb. 382; Stow v. Chapin, 4N. Y. Supp. 496; Moulton v. de ma Carty, 6 Robt. 533.) The case of Tolles v. Wood (99 N. Y. 616, more fully reported in 16 Abb. N. C. 1), upon which plaintiff much relies, is not to First Department, December, 1913. [Vol. 159. the contrary because in that case it appeared that the amount necessary and reasonable for the judgment debtor's support had been agreed upon, and the agreement acted upon for some years before the commencement of the creditor's action, and the court merely adopted the sum thus agreed upon. The second rule is that the burden rests upon the plaintiff to show what is reasonably necessary for the proper support of the judgment debtor in accordance with the foregoing rule. The presumption is that the creator of a spendthrift trust, such as are both of these before the court, calculated the amount that would be necessary to support the spendthrift in the manner and station that such creator desired his beneficiary to be supported in. If his provision was larger than afterwards proved to be necessary it is for the judgment creditor to prove that fact. (Kilroy v. Wood, 42 Hun, 636; Card v. Meincke, 72 id. 299; Bunnell v. Gardner, 4 App. Div. 321; Stow v. Chapin, supra.) The plaintiff made no attempt to sustain this burden of proof, beyond offering some obviously insufficient evidence which was properly rejected. In fact neither party produced evidence upon the subject, and the conclusion at which the court arrived as to the proper amount to be allowed is wholly without any evidence to support it. Such a finding cannot be sustained. Under all the circumstances we certainly cannot say that the net clear income left to the defendant after the payments required to be made to his wife and to or for the benefit of his children is so large as to be unreasonable, although proper evidence might show that it is. We are not called upon to determine upon what sum. the ten per cent execution operates. That can more properly be determined in an action brought to enforce the execution. It follows, from the insufficient allegation and proof as to the issue and return of an execution against the defendant Kemp's property, that the complaint must be dismissed, with costs in each action in all courts to the defendants, trustees. INGRAHAM, P. J., CLARKE, DOWLING and HOTCHKISS, JJ., concurred. Judgments reversed and complaints dismissed, with costs in each action in all courts to the defendants, trustees. App. Div.] In the Matter of the Application of the CITY OF NEW YORK, etc., Relative to Acquiring Right and Title, etc., to the Dock or Wharf Property Known as Gouverneur Slip Pier West, Formerly Known as Pier (Old) No. 51, East River, in the Borough of Manhattan, etc. On Petition of HARLEM RIVER AND PORTCHESTER RAIL ROAD COMPANY, Appellant; THE CITY OF NEW YORK, Respondent. Eminent domain First Department, December 5, 1913. condemnation of dock property, city of New York -interest on award. An owner of docks in the city of New York whose property has been con demned by the city under section 824 of the charter is entitled only to simple interest from the date upon which the title vested in the city, which is four months after the filing of the oaths of the commissioners of estimate. He is not entitled to add the interest to the award to the date of the confirmation of the report of the commissioners and to interest on the sum total from that date, thus compounding the interest. While the interest upon the value of the property taken which accrues between the date of vesting of title and the confirmation of the report of the commissioners is part of the compensation to the owner, the interest which accrues thereafter is in the nature of a penalty for nonpayment, and the owner in order to be entitled thereto must make a demand upon the comptroller as required by section 1001 of the city charter. APPEAL by the petitioner, Harlem River and Portchester Railroad Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of September, 1913, in so far as it denies the petitioner's application for an order pursuant to the provisions of section 1001 of the Greater New York charter. (See Laws of 1901, chap. 466, § 1001, as amd. by Laws of 1906, chap. 658.) Benjamin Trapnell, for the appellant. Charles J. Nehrbas, for the respondent. SCOTT, J.: First Department, December, 1913. [Vol. 159. The only question raised by this appeal is as to the amount of interest to which the petitioner is entitled. The property acquired is what is known as dock property, and the proceedings for its acquisition were instituted under section 824 of chapter 466 of the Laws of 1901, known as the Greater New York charter. By the terms of that section title to the property acquired vested in the city of New York four months after the filing of the oaths of the commissioners of estimate and assessment, to wit, on August 10, 1905. It is provided by the same section that all awards made in such a proceeding shall draw interest from the time of vesting of the title in the city of New York. It is agreed on all hands, therefore, that the award made to the petitioner commenced to draw interest from August 10, 1905. The question involved in this appeal is as to the amount of interest to be awarded. By the order appealed from the court at Special Term has allowed simple interest on the amount of the award from August 10, 1905, the date upon which title vested in the city, to May 9, 1910, a day six months after the confirmation of the report of the commissioners of estimate and assessment, and from February 24, 1911, the day on which the petitioner demanded payment of the award, down to the date of the payment. The petitioner appellant makes two alternative claims as to the interest to which it is entitled. It insists (1) that interest should be added to the award from the date of vesting of the title in the city to the date of the report of the commissioners of estimate and assessment, and that interest should be allowed upon the sum thus obtained, thus compounding the interest, or (2) that simple interest should be allowed continuously from the date of vesting of title in the city to the date of payment. Chapter 16 of the Greater New York charter, as amended, dealing with dock property and the acquisition thereof, contains no separate provisions regulating the practice in condemnation proceedings, but section 822 (as amd. by Laws of 1903, chap. 624) provides that "the provisions of law relating to the taking of private property for public streets or places in said city are hereby made applicable, as far as may be necessary, to the acquiring of the said property." |