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whom he made oath that he knew them and saw them sign; and he might plausibly and incontestibly claim that other signatures were added after the sheet had left his hands.

their

In order that the responsibility may be fixed either upon the signer or the witness for the authenticity of the signature, which is clearly the policy of the statute, I can only hold that the certificate in question is defective, in so far as the witnesses have failed to sign their names opposite each signature witnessed and on the same line therewith. There are 1,188 of the signatures which are defective in this respect, thus leaving only 206 unobjectionable signatures, when 1,278 are required.

It seems to me, however, that this is a defect that can be cured, if in fact, the substantial requirements of the statute are met, namely, that a sufficient number of qualified voters have signed, and have either sworn to the necessary facts themselves, or have signed in the presence of qualified witnesses who knew them and saw them sign, and to whom they declared their intention of supporting the candidate in question at the polls, and that the witnesses signed their names in the presence of each such voter. The affixing of the signature of the witness in a particular place on the certificate was intended only as a guaranty of the good faith of the signature. If responsibility for the signature can be fixed, and the thwarting of criminal prosecution may be avoided, by the performance of that clerical act at this time, the full requirements of the statute would be met, and justice would be done.

If, in fact, a signer of the certificate is not a qualified voter entitled to vote for the candidate, or if the witness chosen was not a qualified witness, or if the signer failed to sign in the presence of the witness, or failed to declare to the witness his intention to support the candidate at the polls, or if the witness failed to sign his name in the presence of the signer of the certificate, the court cannot modify or excuse any such fact. The court can only order the correction of the recording of these facts.

Thus, if there were doubt as to the name and address of a signer, because not written legibly enough to be read and identified, the court might permit the real signer to verify his signature. So, if a mistake had been made by a witness in setting forth his qualifications to act as such, proof could be entertained by the court to correct the error; also, if, in fact, the signer did sign in the presence of the witness, or did declare his intention to support the candidate at the polls, or if the witness did sign his name in the presence of the signer, but the witness failed to state one or more of such facts in his oath, justice would require that the omission of the recording of that fact be corrected by permitting the witness to make oath to that which actually transpired.

So, too, if the witness were led by the character of blank furnished to him and in turn furnished to the candidate by a representative of the board of elections, which was so ruled that the narrow column left for the witness' signature of his name might readily indicate to him that the requirements of the law would be satisfied if he wrote his

.

(178 N.Y.S.)

name lengthwise in the column opposite the names witnessed by him, rather than crosswise on the line with each signature witnessed, it seems to me that fraud could not be presumed in the act, but rather that it would be an excusable omission, which could be cured. To permit him now to place his signature in the proper place to conform with the legal requirement would be simple justice, in that it would be affording an opportunity to him to simply record the facts in which the law is interested by pointing out definitely and certainly the signatures to which his oath as witness related. This gives concrete interpretation to the indefinite expression embraced in the statutory oath required by witnesses to be taken as set forth in the phrase "as to whose signatures deponent has signed as a witness above." Election Law, § 123, subd. 2.

The difficulty with which I am confronted, however, is that there is no proof before me that the witnesses did comply with the matters of substance required by the statute as to all the signatures claimed by the respondents to have been witnessed by them. The method of signature adopted by the witnesses makes it just as impossible for me to assume what names were intended to be authenticated by their 'oaths for the purposes of this proceeding as it would be in a criminal proceeding to punish for a false oath, to which I have referred as the chief object to be served in having the signatures of the witnesses recorded in the proper place and on the proper lines. It is claimed by the respondents that each signer is a qualified voter of the city of Troy, but there is no proof before me that the persons whose names appear actually signed their names. That is the very question intended by the statute to be proved on the face of the petition. The face of the petition does not prove it, because of the method adopted by the witnesses in signing their names. So far as appears from the face of the petition, names might have been added which were not witnessed at all by these witnesses. Names might have been fraudulently placed there by other persons, and, if so, that fact could not be successfully disproved by anything appearing upon the face of the petition. This is the very thing intended to be prevented by the requirements of the statute as to having the signatures. witnessed by a responsible person, who would swear that he knew the signers, and who could be punished if he swore falsely.

If it were a fact, and proof thereof was submitted to me, that these witnesses did actually witness the bona fide signatures of qualified voters, whom they personally knew, in an aggregate number sufficient to meet the requirement of the statute, and there was simply an excusable mistake in the recording of the names of the witnesses in the proper place upon the certificate, justice would require that I permit the irregularity to be corrected. As there is no proof before me, however, in relation to the actual persons, and the number of them, to be affected thereby, I am without power to order the correction, and the consequent filing of the certificate as a valid petition upon compliance therewith. Moreover, it is not the province of the court to do so, and justice does not require the authorization of a "fishing expedition" to determine whether the facts would authorize such a correction. Irresponsibility cannot be commended by the court to such an extent. The court cannot act, except upon proper proofs as to the compliance with the substantial requirements of the statute. Such proof would consist of the submission of the affidavits of each of the witnesses, to whom objection has been made, stating the names of the signers actually witnessed by them, that the witness knew each of such signers, that the witness saw each of them sign, and heard each of them declare his intention to support the candidate at the time of signing the certificate, and that he signed his name in the presence of each such signer. Upon this proof the penal provisions of the statute would be satisfied, because upon the petition and such an affidavit responsibility could be fixed for criminal prosecution, in the event of any false statement of any of the material facts above mentioned.

[4] Other objections to the certificates have been filed. The first of these is that certain witnesses do not possess the qualifications required by law, in that it does not appear in the certificate that they are freeholders in the county, or were for the last preceding five years residents of the county. This objection has been cured by the affidavits of the witnesses that they do possess the qualification of residence. This is a mere excusable omission, which I have held is curable.

[5, 6] Another objection is that the petition failed to contain a certificate of the good character of three witnesses, and that the petition was filed in two sections, and no certificate of good character was attached to the second section. The two sections, however, must be read together as one petition, and the witnesses covered by the character certificate in the first section must be deemed to be covered as to the second section also. The character certificate as to the three witnesses not covered at all in the petition has been supplied before me in the form required by the law, and I hold that to be an ex-, cusable omission which can be cured.

[7] Another objection raised is that a number of the alleged signers of the certificate are women who have not signed their Christian names. Reference is made by the complainant to the requirement of the law as to the signature of the registry book, which specifically requires the Christian names to be given. Section 155, Election Law, subdivision 1. This requirement was not, however, embodied in the provisions of the law as to signature upon an independent certificate of nomination. There the law requires only the signatures of the signers, and whatever is capable of identifying the signer is sufficient. Moreover, any error in form, or failure to disclose identity, could be cured as an excusable omission upon submission of the proper proofs by the signer.

Objections are also raised as to the qualification of three witnesses, upon the ground that they were not registered from the same address or in the same election district for the last preceding two general elections. It is not clear from the proofs submitted as to whether Alson D. Sickler meets one of these requirements. While the certificate seems to indicate that he registered from the same address in

(178 N.Y.S.)

both years, his own affidavit in this proceeding casts doubt upon it. so that I cannot determine whether or not he is a qualified witness, without the submission of further proof.

[8] Walter J. Rogers is charged with not having registered for the year 1918, but it appears by his affidavit that he was in the military service at the time, and was registered and voted that year in a military camp. I hold that to be a proper registration, within the meaning of section 123 of the Election Law, sufficient to qualify him as a witness to an independent certificate of nomination.

Harry O. Dusenbury by his own admission is not a qualified witness, since he states in his affidavit herein that he did not register anywhere for the year 1917. His disqualification invalidates 9 signatures. Therefore my conclusion must be that insufficient facts have been presented to me in support of this petition to permit me to authorize the certificate to be filed as a valid certificate of independent nomination, at least without the submission to me of the additional proofs referred to herein. If the parties represented here cannot agree upon a time necessary to furnish such proofs, if the required facts are susceptible of proofs, application may be made to me by the respondents at any time for the fixing of a date for such submission upon one day's notice to the other parties.

(108 Misc. Rep. 42)

GOULD et al. v. GOULD et al.

(Supreme Court, Special Term, New York County. July, 1919.)

1. TRUSTS166(2) - REFUSAL TO CARRY OUT TESTAMENTARY DIRECTIONS GROUND FOR REMOVAL OF TESTAMENTARY TRUSTEE.

Where whole scheme of will showed testator's express insistence that estate should be divided into six separate trusts, and codicil repeated direction that such shares, accounts, and transactions pertaining thereto should be kept entirely separate and never mingled, absolute and continued refusal of one of the testamentary trustees, who practically controlled entire estate, to carry out such direction, is legal ground for his removal.

2. TRUSTS166(1) - REMOVAL OF TESTAMENTARY TRUSTEE ORDERED FOR CHARGING UNAUTHORIZED COMMISSIONS AND TAKING SECRET PROFITS.

Where will fixed compensation of testamentary trustee, and forbade further compensation, his receipt of large amount as a commission and as a secret profit on sale of stock of trust estate, and his retention thereof for eight years, and until a motion to remove him as trustee, and his refusal then to pay interest thereon, was a dereliction of duty, and his then repayment of amount to estate did not so palliate original wrong as to justify the court in either approving or overlooking it.

3. TRUSTS231(1) - TESTAMENTARY TRUSTEE MUST NOT ALLOW INDIVIDUAL INTEREST TO CONFLICT WITH DUTY.

A testamentary trustee must act, not only for the benefit of the trust estate, but also in such a way as not to gain any advantage, directly or indirectly, except such as the law specifically gives him, and owes an undivided duty to the beneficiary, and must never place himself in a position wherein his personal interest will conflict with the interest of the beneficiary.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

4. TRUSTS 166(2), 167-REMOVAL OF TESTAMENTARY TRUSTEE FOR MINGLING TRUST FUNDS WITH HIS OWN AND USING THEM AS SUCH.

In action by executors and testamentary trustees for an accounting and court's approval of their acts, in which all necessary parties are served with summons and complaint, and had notice of a motion to remove a trustee and appeared thereon, court had jurisdiction to entertain motion, and should grant it, where it satisfactorily appears that such trustee had continuously mingled trust funds with his own, and used them as his own property, contrary to direction of will, and was entirely ignorant of, or defiant of, principles governing administration of trust funds.

5. TRUSTS167-IN ACTION FOR ACCOUNTING, NOTICE OF MOTION TO REMOVE TRUSTEE NEED NOT BE GIVEN DAUGHTERS OF TRUSTEE DULY SERVED.

In action by executors and trustees under a will against all parties interested in estate for an accounting and court's approval of their acts, with motion by certain interested parties for removal of a trustee, where two defendants, remaindermen and daughters of such trustee, though legally served with process, did not appear, one being out of the jurisdiction and the other appearing only specially, it was not necessary to serve them with a notice of a motion in the action to remove their father as trustee.

6. TRUSTS167-JURISDICTION OF COURT TO REMOVE TESTAMENTARY TRUS

TEES.

Executors and testamentary trustees, whose executorial duties had been completely performed before their action in the Supreme Court for an accounting and court's approval of their acts, making all interested parties defendants, could not complain that papers therein, moving for removal of one of such trustees, showed that he had not ceased to act as executor, and that Supreme Court had no jurisdiction to revoke letters testamentary, as there was no necessity for a decree separating his duties as executor and as trustee, and as Supreme Court has jurisdiction concurrent with that of the Surrogate's Court.

7. TRUSTS167-MOTION FOR REMOVAL OF TRUSTEE MAY BE GRANTED ON AC

COUNTING.

Real Property Law, § 112, and Code Civ. Proc. § 768, relating to removal of trustees, etc., are permissive, and not exclusive, and nothing therein prohibits the removal of a testamentary trustee on motion in his action for an accounting, etc., as power of court to act comes from Constitution, specifically granting "general jurisdiction in law and equity."

8. COURTS480(1)-HAVING FULL JURISDICTION OF CAUSE AND PARTIES, WILL ENJOIN ANOTHER SUIT FOR SAME PURPOSE.

In action by executors and trustees under a will for an accounting and for court's approval of their acts, making all interested parties defendants, the court, having acquired plenary jurisdiction of parties and subject-matter, will restrain prosecution of a separate proceeding for removal of a trustee, as a motion in such action for his removal, being incidental and ancillary, would come clearly within sound rule that, if full relief can be had in one suit, no other shall be allowed.

Action by George J. Gould and others, as executors and trustees under the will and codicils thereto of Jay Gould, deceased, against George J. Gould, individually and as receiver, etc., and others, for an accounting and an approval by the court of the acts of the executors and trustees, and a construction of certain parts of the will, with motion therein by Frank Jay Gould and others for the removal of George J. Gould as trustee, opposed by George J. Gould, trustee, and others. Motion granted.

Leonard & Walker, of New York City (Samuel Seabury and Walter B. Walker, both of New York City, of counsel), for defendant Frank

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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