(concurring) :
I concur in the affirmance of this judgment and wish to add a few words to the opinion of Mr. Justice O’Brien.
1 think the record shows that the authority given to the defendant was given and received for the purpose of enabling the. defendant to have a iree hand in dealing with all the-securities and property which had belonged to the plaintiff’s father or in.whicli the plaintiff had an interest. It is quite evident that the plaintiff had been given to understand that in consequence of judgments which it was alleged had been -recovered against her father, whatever property there was should be dealt with in some way other than the usual method of • administration. The power of attorney authorizes th'e *389defendant to “ sell, transfer and assign all shares of stock or bonds of The Adirondack Railway Company standing in my name on the books of' the said company, or owned by me, and all trustees’’ certificates for such stock and bonds, to surrender, change and receive such certificates, and generally to use, manage and control all my rights and interests in such stock, bonds and certificates ” in said company. The plaintiff testified that she signed this power of attorney after an interview between her mother, the defendant and herself, at which the defendant stated that “ he being the man of the family, that it was naturally right he should attend to our affairs; that it was to our, my mother and his, interest that the estate- should be 'settled, and to carry out father’s intention in these negotiations which had been pending, and he had mother’s power of attorney, and he wanted mine for the same purpose, and then when the road was sold and the land, that there would be some-debts to-be 'paidi, and after that there would be about a million and a half coming to us¡, and there was just the widow and the two children; the widow would have a third-, and the children would divide equally, "x" * * he' had said before that we were all in the same boat and our interests were identical, so that he added at the end' that if I did not sign it that of course we being three having equal interests, that two could freeze out the other pne; ” that it was relying upon these statements and to enable the defendant to realize from the property left by their father that the power of attorney was executed. -The plaintiff further testified that all the proceedings to manage, and dispose of all the property left by. the father or in which the plaintiff had an interest were left to the defendant to manage. That the defendant did take' possession of all the property left by the plaintiff’s father as well as all the property to which the plaintiff was entitled, and that he managed and controlled it, is established; and it is difficult to see upon- what principle the defendant can refuse to account for the property belonging to his father or in which the plaintiff had an interest which came into his hands. By the execution 'of this instrument the defendant betiame the agent in fact for the plaintiff, and as such received and administered property which had belonged to the plaintiff as well as that which had belonged to his father. Whether hq received it as his father’s administrator. or as his father’s successor *390in some indefinite trust, or as the direct attorney for the plaintiff, ''acting under the terms of this power of attorney, is not material. What the plaintiff is entitled to, is to have an accounting by the defendant of all the property which he received that belonged to her father or in which she had an interest.
As to the decree of. the Surrogate’s Court upon the accounting of ■the defendant as administrator of the father, it is quite apparent that it is in no way binding upon the plaintiff. In the first, place, it is not pleaded as an adjudication. There is no allegation in the answer that this decree would stand in the way of a judgment requiring the defendant to account to the plaintiff for her interest either in the estate of the father, or in any other property received by the defendant in which she. had an interest.
Nor does it appear in the record that the citation to appear in the accounting proceeding was ever served upon the plaintiff so as to give the court jurisdiction over her. It is sufficient to say, however, that the decree of the surrogate is not pleaded as an adjudication binding upon the plaintiff.
Van Brunt, P. J., Rumsey, O’Brien and McLaughlin, Jj., concurred.
Judgment affirmed, with costs.