Matter of Spelman v. . Terry

Per Curiam. The Supreme Court had jurisdiction in the matter. The bond of the special guardian was conditioned to account for all moneys according to the order of any court having authority to give direction in the premises. (2 R. S., p. 194, § 172.) If the County Court of Kings county had authority also, it was not exclusive. The rule made or announced by the chancellor in Matter of Seaman (2 Paige, 409), that all proceedings in such cases must be filed in the office where the order for the appointment of the guardian *451 was entered, does not interfere. The office of the county clerk of Kings county is the offiee of both the Supreme Court and the county court. The case was not res adjudícala. In the proceeding before the County Court of Kings county, it does not appear for what reason that court denied the motion. It may have been upon some point not affecting the merits. It does appear that but one of the persons interested in the estate was a petitioner there. The facts as now presented were not developed there. A conclusion of a court is not res adjudícala, where it is not a decision upon the merits. It does not appear that the merits were passed upon. It does not appear to have been made a point below, that the appointment of the appellant as special guardian was not proven. It is alleged in the petition, and not denied by the affidavit of the appellant. There was no question as to what was the real estate involved in the proceedings. It was sufficiently described by street and street number. It does not appear that the fees of the referee exceeded the limit of the per diem allowed by statute, for it does not appear how many days he spent upon the reference. The case does not fall within the decision in Concklin v. Taylor (68 New York, 221). This was not a motion, within section 271 of the Code, but a special proceeding within section 311. We think that the order should be affirmed upon the merits. We do not hold that one appointed special guardian to sell infants' real estate, who then holds a valid incumbrance upon or a claim against the same, thereby loses his rights in his incumbrance or claim, or is to forego the sale of it to his own advantage. What Ave hold is, that he may not after he is appointed, so use an invalid claim held by him, as to put a purchaser of it from him into possession of the lands; whereby an action of ejectment is made necessary to regain possession by the one laAvfully entitled. It is an act in hos *452 tility to the interests of his ward; and inconsistent with the duty he owes. For the damage from such act he. should make just compensation. Such rule is a branch of the principle that one holding a relation of trust to another cannot deal with the trust estate or fund to his own profit and the harm of the cestui que trust. We think that the General Term was not illiberal towards the appellant, in the terms it imposed upon him. The order should be affirmed. All concur, except Miller and Earl, JJ., absent. Order affirmed.