Moufang v. State

Hill, P. J. Respondents seek a determination by the Court of Claims awarding damages against the State for the failure of the Comptroller to invest at interest $6,233.16 turned over to him by the New York City Chamberlain July 1,1932, pursuant to section 44 (later § 84) of the State Finance Law. The damage sought is the interest which respondents assert would have been [197] earned had the fund been invested, and is computed at 3%% for the first nine months, thereafter at 3%, 2%%, 2% and finally for the last three years. The total interest so computed is $1,724; each respondent seeks one half thereof. The fund came from a partition action begun in 1892, and was paid to the County Treasurer of Bangs County under the final judgment of 1894, which contained a direction that it be kept invested during the life of the widow and daughter and paid with the accumulation to respondents, children of the daughter, at her death. The Comptroller has paid over the corpus of the fund under an order of the Supreme Court which contained a that the payment would be made “ without prejudice to any claim or right * * * against the Comptroller of the State of New York and the State of New York * * * arising out of the failure and neglect, if any, of the Comptroller of the State of New York to invest said fund ”. This appeal is from an order of the Court of Claims permitting respondents fo file a claim. The procedure is not questioned and the order is treated as being determinative of the issue. The objections by the Attorney-General are that the claim “ did not state a cause of action ” and “ that no duty of investment existed on the part of the Comptroller ”. It has been determined that a transfer to the State Treasurer under the statute from which section 84 of the State Finance Law was copied makes that officer a custodian and that the order under which the court funds were originally deposited “ operates alike upon every officer having the custody of the money ” and that the portion of the decree which directs that the fund be invested and reinvested continues to be operative. The opinion states: “ The exercise by the Legislature of this power in designating the Treasurer of the State as the custodian of such moneys, under the provisions of the act now under consideration, is in nowise different from the exercise of that power with respect to the chamberlain of the city of New York. The second objection urged by the appellant is that the act in question vacates or nullifies or interferes with orders of the court. The essential part of an order or decree made by the court with respect to the deposit of moneys is that the depository designated shall retain the custody and control of [198] the moneys until the further order of the court making such order or decree, with a direction to invest and reinvest the same in a general or specific manner. The force of an order of this character operates alike upon every officer having the custody of the money.” (People v. Keenan, 110 App. Div. 537, affd. 185 N. Y. 600.) The opinion in Matter of Sohmer (156 App. Div. 781) following the Keenan case (supra) and others, states: “ The rights of the parties interested in the funds are not affected in the least by the change of custodian, and * * * it is unquestionably within the power of the Legislature to designate the custodian of such funds.” Funds deposited by a court with a custodian as provided by statute remain in the custody of the court although transferred by the Legislature to another custodian as fully as if they remained in the personal custody of the court. (Matter of City of New York, 200 N. Y. 138, 145; Matter of Walsh, 204 N. Y. 276.) The Legislature may not change or modify vested rights held under a judgment or order of a court. (Livingston v. Livingston, 173 N. Y. 377; Matter of Greene, 166 N. Y. 485.) The order should be affirmed, with costs.