Trustees claim in New York

2025As an alternative ground for affirmance of the order and judgment ( see Parochial Bus Sys. v Board of Educ. , 60 NY2d 539 ; Ciatto v Lieberman , 266 AD2d 494 ), SCO contends on this appeal that the Member Disputes provision violated public policy because it allowed a party to the agreement to resolve disputes thereunder.

2025As an alternative ground for affirmance of the order and judgment ( see Parochial Bus Sys. v Board of Educ. , 60 NY2d 539 ; Ciatto v Lieberman , 266 AD2d 494 ), SCO contends on this appeal that the Member Disputes provision violated public policy because it allowed a party to the agreement to resolve disputes thereunder.

2001The showing made by appellants, the remainder beneficiary of the Trust and the executor of the estate of the lifetime income beneficiary of the Trust, was insufficient to create a question of fact as to whether the Trustees breached their duty of care to either the income beneficiary or the remainder beneficiary during the period covered by the current account, March 14, 1990 through October 31, 1998, or that any such breach of duty caused a loss (see, Matter of Goldstick, 177 AD2d 225, 237 , mod 183 AD2d 684 ).

2001The showing made by appellants, the remainder beneficiary of the Trust and the executor of the estate of the lifetime income beneficiary of the Trust, was insufficient to create a question of fact as to whether the Trustees breached their duty of care to either the income beneficiary or the remainder beneficiary during the period covered by the current account, March 14, 1990 through October 31, 1998, or that any such breach of duty caused a loss (see, Matter of Goldstick, 177 AD2d 225, 237 , mod 183 AD2d 684 ).

1951The purpose of procuring the affirmative action of all trustees is as set forth in an analagous situation wherein, by statute, three judges were required to join in a determination to restrain the Interstate Commerce Commission, and in holding that an order made by only two was a nullity (the third being prevented by illness from joining in the determination) it was held by the United States Supreme Court in Ayrshire Corp. v. United States ( 331 U. S. 132,139 ): “ Moreover, we cannot say that the failure of the third judge to participate in the determination of a case, where the other two are

1939(Matter of Clarke, 166 Misc. 807 .) Since the entire proceeds of the sale have been exhausted by the payment of carrying charges, the further question of apportionment between the life tenant and remaindermen is academic in the present case.

1939In this regard counsel for the trustees is in error as to the method of allocation of the proceeds under section 241 of the Restatement of the Law of Trusts which was approved in Matter of Rowland (supra).

1920This court decided (Matter of McDowell, 102 Misc.

1917Corp. Law, § 91.) •When such an action is brought by a creditor it has been held that it is '"in the nature of a creditor’s bill, a search and trace by a diligent judgment creditor for and the enforcement of an equitable lien upon the assets of the corporation that have been distributed by the trustees in violation of law.’ ” (Shalek v. Jetter, 171 App. Div. 364 .) In the instant case it appears by stipulation that, although the individual defendants and Ansaldi subscribed for $10,000 par value of the stock, the same was issued to them without their paying or giving anything therefor, thus vio

1902If we are to accept the construction claimed here by the trustees, then we must regard the principal and income in the hands of the trustees as one fund, and having had their 5 per cent, on the first thousand, and 2½ per cent, on the next 10,000 once, they cannot have it twice, and on all subsequent income the commissions can only be allowed upon the 1 per cent, basis. ■Counsel for the trustees also claim that the rule laid down in Matter of Willets, supra, has been abrogated by the amendment of 1892 to section 2736.

1886These objections, so far as they relate to matters which might have been corrected on appeal from the report of the commissioners, are foreclosed by the final order of confirmation (Embury v. Conner, 3 N. Y. 511 ; Dolan v. Mayor, etc., 62 id. 472), assuming of course, that the parties interested had legal notice of the proceeding.