Matter of Manufacturers & Traders Trust Company

• Decision Date: 06 July 2007
• Docket Number: CA 06-01685.
• Citation: 2007 NY Slip Op 05880,42 A.D.3d 936,839 N.Y.S.2d 642
• Parties: In the Matter of MANUFACTURERS & TRADERS TRUST COMPANY (Formerly MERCHANTS NATIONAL BANK AND TRUST COMPANY OF SYRACUSE), a Cotrustee of the David Small Trust Under Agreement Dated December 28, 1938, Appellant-Respondent. DAVID SMALL et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

42 A.D.3d 936

839 N.Y.S.2d 642

2007 NY Slip Op 05880

In the Matter of MANUFACTURERS & TRADERS TRUST COMPANY (Formerly MERCHANTS NATIONAL BANK AND TRUST COMPANY OF SYRACUSE), a Cotrustee of the David Small Trust Under Agreement Dated December 28, 1938, Appellant-Respondent DAVID SMALL et al., Respondents-Appellants.

CA 06-01685.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided July 6, 2007.

Appeal and cross appeal from a decree of the Surrogate's Court, Onondaga County (Peter N. Wells, S.), entered May 2, 2006. The decree determined, inter alia, that EPTL 11-A-4.6 does not require the distribution of an amount equal to the annual fixed appreciation in value of the original issue discount bonds currently owned by the David Small Trust.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs and the decree is modified on the law by remitting the matter to Surrogate's Court, Onondaga County, for further proceedings in accordance with the memorandum and as modified the decree is affirmed without costs.

Memorandum:

Petitioner appeals from that part of a decree determining that "EPTL 11-A-4.6 does not require the distribution of an amount equal to the annual fixed appreciation in value of the original issue discount bonds currently owned by the David Small Trust." That part of the decree does not affect a substantial right of petitioner (see Matter of Michel, 12 AD3d 1189, 1190 [2004]; Matter of Sayers, 273 App Div 1051 [1948]; see also SCPA 2701; CPLR 5701 [a] [2] [v]), and petitioner does not have a direct interest in the outcome of this matter and is not affected by the result (see Matter of Huggins, 239 NY 511; Isham v New York Assn. for Improving Condition of Poor, 177 NY 218, 222 [1904]; cf. Matter of Farone, 101 AD2d 986, 987-988 [1984], revd on other grounds 65 NY2d 764 [1985]). We thus dismiss petitioner's appeal inasmuch as petitioner is not an aggrieved party (see CPLR 5511; Matter of Cannan, 278 App Div 742 [1951]).

We note that the issue raised by respondents on their cross appeal, i.e., that Surrogate's Court erred in determining that the trust instrument requires that $10,000 per year be distributed to each of the six children as the income beneficiaries of the trust, is not encompassed by the notice of cross appeal. Nevertheless, inasmuch as there is no indication on this record that petitioner is prejudiced by that omission, we exercise our discretion "to reach beyond" the scope of respondents' notice of cross appeal and address the merits of that issue (McSparron v McSparron, 87 NY2d 275, 282 [1995], rearg dismissed 88 NY2d 916 [1996]). "[I]t is a fundamental principle of will and trust construction that[,]...