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In the Matter of the Judicial Settlement of the Account of Proceedings of Westchester Trust Company, as Substituted Trustee, etc., of Abijah Curtiss, as to Trust Created for Kate C. Sanford. Westchester Trust Company, Appellant Kate C. Sanford, Curtiss A. Sanford and Selden Sanford
-Appeal from a decree of the Surrogate’s Court, Westchester County, sustaining certain objections to the account of the Westchester Trust Company, and surcharging it. Decree modified by striking therefrom surcharges based on certificate No. 576, for $6,000, certificate No. 587, for $1,000, and certificate No. 2543, for $400; and, as thus modified, unanimously affirmed, without costs, and the matter remitted to the Surrogate’s Court for the entry of a decree accordingly.
The modifications are required by the ruling in respect of a corresponding certificate (No. 2940) in Matter of Heermance (254 App. Div. 685; affd., 278 N. Y. 601). There, as here, the certificate was issued against a first mortgage at a time when it was affirmatively established that no other certificate had issued against a subsequent mortgage or a consolidation of the first mortgage with another.
The acts of the trustee subsequent to the issue of the certificates here involved, therefore, had no effect upon their priority or validity. The ruling on certificate No. 4957 was properly made, not only for the reasons given but because of negligence in respect of want of diversification.
(Durant v. Crowley, 197 App. Div. 540; affd., 234 N. Y. 581; Matter of Flint, 240 App. Div. 217, 228; affd., 266 N. Y. 607.) The contentions advanced in reference to res judicata are concluded by the holding in Matter of L. I. L. & T. Co. (Garretson) (92 App. Div. 1; affd. on opinion below, 179 N. Y. 520). Present — Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ.