Berle v. Dawkins

Dore, J. In 1918 subscriptions were taken up from the defendants and other citizens of the city of New York as contributions to a fund known at that time as the “ Arch of Freedom ” fund to be used in erecting an arch in memory of the war dead. Plaintiff, the chamberlain of the city of New York, is the present holder of the fund, and it appears that the fund is inadequate to erect a fit and suitable memorial in the form of an arch as originally intended, and there is no present likelihood that there will be sufficient increase in the fund for such purpose. Plaintiff desires to use such memorial fund for the construction of five playgrounds, one for each borough of the city of New York, which playgrounds would be designated “ War Memorial Playgrounds,” or appropriately named or designated by tablets in bronze or otherwise, so as to fink up the proposed playgrounds with the main purpose of the memorial fund, that is, as a memorial to our soldiers who made the great sacrifice in the World war. The prayer is for a declaratory judgment that the plaintiff custodian may use the money for such purpose. The argument is made that the particular type of memorial was not unalterably fixed by the donors. What is fixed is that the money be used for a suitable memorial. It seems to me that the proposed use under all the facts and circumstances of this case would effectually carry out the purposes of the fund and would meet with the approval of the donors. The case is an entirely suitable one for the application of the law permitting declaratory judgment. Important public interests are involved, a speedy determination of which is imperative. It is, therefore, necessary that the respective rights of the parties be determined. This may be done in this proceeding under section 195 of the Civil Practice Act. Plaintiff’s motion for a declaratory judgment on the pleadings is in all respects granted. Present appropriate judgment accordingly on one day’s notice on or before March 22, 1934.