In re Plumb , 21 N.Y. St. Rep. 107 ( 1889 )

on appeal from restraining order.

Van Brunt, P. J.

The grounds urged upon this appeal are—First, that the injunction order was issued irregularly, the court being without jurisdiction to make it, and that it is therefore void; and, second, that the order was an abuse of discretion, if considered upon the merits.

We will first consider the question of irregularity. It is claimed that the order was irregular because it did not accompany the citation, and was not served therewith, but long afterwards. This point is claimed to be well taken, because of the provisions of seption 2834 of the Code, which provides that, upon issuing the citation as prescribed in the last section, the surrogate may, in his discretion, make an order suspending a guardian wholly or partially from the exercise of his power and authority during the pendency of the proceeding, and that a certified copy of the order so made must accompany the citation, and be served therewith. The provisions of this section, however, do not seem to us to confine the surrogate to the making of an order of injunction against the guardian which shall accompany the citation issued upon the petition for his removal. By section 2481 the surrogate, in court or out of court, as the case requires, has power to enjoin by order a guardian, to whom a citation or other process has been duly issued, from acting as such until the further order of the court. This provision expressly authorizes the surrogate to exercise this power either in court or out of court, after the issuance of a citation, and section 2834 is merely an amplification of this authority, which provides that the surrogate may in his discretion, upon issuing*! citation, make such an order, and in such case the order must accompany the. citation. There is no such provision in section 2481. By section 2481, subd. 4, as has been said, the surrogate lias power to enjoin by order a guardian to whom a citation or other process has been duly issued, expressly conferring the power to act after the issuance of the citation. Had it not been for the provisions of section 2834, it might very well have been argued that the surrogate had no power to make an order of injunction which should accompany the citation, but that it was necessary (that the citation should be served before such power could be exercised; and it seems that section 2834 was inserted for the purpose of preventing a failure of justice because of the inability of the surrogate to issue citation and enjoin at the same time. The procedure of the surrogate in this respect seems to have been entirely in harmony with the provisions of the Code.

The other objection, that the issuance of the order was an abuse of discretion, if considered upon the merits, does not seem to be well founded. There are specific allegations in the petition of misconduct on the part of the guardian. It is alleged in the petition by the petitioner that her father and guardian has no means of his own, and lives a live of leisure, and has always been most extravagant in his manner of living; and the inference necessarily to be drawn from this allegation is that he has been living upon the trust. In his answer there is no refutation of this allegation, nor does the guardian show in any manner from whence he has derived his own living during the period that he has been exercising the duties of his trust. This fact alone would be sufficient to excite inquiry as to how the trust has been administered, and the fact, being admitted apparently, that the guardian has been living upon his ward during this series of years, would be such as would authorize the surrogate to take the action which he has done.

There are other allegations in the petition, some of which are denied, and some of which are attempted to be explained. But there were reasons and circumstances connected with the whole transaction which would naturally excite suspicion, and which justified the surrogate in taking the extreme action which he did, by granting the injunction restraining the appellant from acting as the guardian of his daughter. The order should be affirmed, with $10 costs and disbursements.

Daniels, J., concurs.