On November 29, 1926, an order was made in the above-entitled action permitting and authorizing the guardian ad litem to make a settlement and compromise of the cause of action for the sum of $5,000. The order directed payment therefrom to the attorneys for the plaintiff of the sum of $1,250 plus disbursements and it was further "ordered, that the balance be deposited with the Chamberlain of the City of New York for the benefit of the infant and said sum be withdrawn only upon order of the Court." Accordingly there was deposited with the Chamberlain of the City of New York for the benefit of Alvin Gerschon the sum of $1,785 which represented one-half of the net balance of the money received from the settlement. Subsequently three orders were made herein by the court dated September 21, 1931, September 23, 1932, and December 3, 1936, authorizing withdrawals from such funds so deposited plus accrued interest in the aggregate *Page 62 of $1,347.32, leaving a balance as of the time of the commencement of this proceeding in the hands of the Chamberlain of $936.06. Alvin Gerschon, having arrived at maturity, filed a petition in which he requests that such balance together with accrued interest be paid over to him. On February 18, 1937, an order was made at Special Term directing payment. The Appellate Division has affirmed.
It appears that on September 19, 1929, the Chamberlain, without order of the court, withdrew $1,000 of such sum so deposited and, again without order of the court, invested the same in an undivided share of a bond in the face amount of $70,000 made by the New York Electrical Trade School, secured by a mortgage in the sum of $70,000, thereafter reduced to $50,000, covering premises at 39 West Seventeenth street, Manhattan, New York city, and that this mortgage was foreclosed and the City Chamberlain acquired title to the premises on December 17, 1934. The Chamberlain asserts that he has no cash in his hands but he has that investment which represents an undivided interest in real property. He admits that the balance, if it had been on deposit in bank at regular interest, would have amounted, after deducting his commissions, to the sum of $936.06 as claimed by the petitioner.
It has been the common understanding that an order made in the form in which this order of deposit was made required the depository to retain the deposit in cash unless the court ordered it withdrawn or invested. That the Chamberlain so understood and construed the meaning of the order is irrefutably indicated by the fact that it was all so retained for the period from November 29, 1926, to September 19, 1929, and $1,347.32 of the fund was retained for a further period until withdrawn and paid over for the use of the infant by the aforesaid orders. The obvious purpose of the order being made in the form indicated was to retain the fund in such shape that it might be at any time withdrawn *Page 63 in cash for the benefit of the infant as and when the court deemed it proper. In Matter of Schmidt v. Chamberlain (266 N.Y. 225) this court held that an order of deposit of funds with the Chamberlain "to be held by said Chamberlain of the City of New York until the further order of this court herein" required the Chamberlain to hold the funds available for distribution at any moment that distribution might be deemed advisable by the court. Under such an order the Chamberlain was not authorized to make any investment of the fund but was prohibited from doing so. Attempt is now made to draw a distinction, affecting substantial rights of the parties involved, between the order in the case at bar and the order made in the Schmidt case. In the latter case the order provided that the sum be deposited with the Chamberlain to the credit of the infant "to be held by said Chamberlain of the City of New York until the further order of this court herein." In the case at bar the order provides that the moneys be deposited with the Chamberlain for the benefit of the infant and that "said sum be withdrawn only upon order of the Court." In the one case, it is said, the words used mean that the Chamberlain must keep the cash on hand or deposit, while, in the other, he need not do so. The one constitutes a "direction;" the other does not. To my mind the meanings are identical. One is a direction; the other a prohibition. "To hold" is "not to withdraw." So the dictionary teaches us. The form of order in the instant case is in the usual and general form prepared to require retention of the moneys in cash or on deposit. As above indicated, that meaning was attributed to it by the Chamberlain, and I see no occasion to now make the order read something entirely to the contrary. Whether the court was "not required to direct" as to whether the funds should be held or invested is beside the point. The court did direct that the sum on depositshould not be withdrawn without *Page 64 further order of the court, and the Chamberlain violated the direction.
The order of the Appellate Division should be affirmed, with costs.
CRANE, Ch. J., LEHMAN, O'BRIEN, LOUGHRAN and FINCH, JJ., concur with HUBBS, J.; RIPPEY, J., dissents in opinion.
Orders reversed, etc.