Supreme Court, June, 1900. [Vol. 32. written by him to the plaintiff April 25, 1890, he made a statement to her of the manner in which he had invested her funds (Exhibit C). In this letter he inclosed a formal statement of account (Exhibit B), showing that the amount with which the plaintiff was credited by him on April 21, 1890, was $14,311.08; also, that Gideon E. Moore left a will by which the defendant, his widow, was made the sole legatee and devisee, and that no mention was made in this will of his obligations to the plaintiff. This will was admitted to probate on June 24, 1895 (Exhibit A). On August 17, 1895, this action was begun against the defendant individually and as temporary administratrix, the complaint containing the prayer for relief already referred to. On September 4, 1895, letters of administration, with the will annexed were issued to the defendant, the widow of Gideon E. Moore. Second. I think the counsel for the plaintiff is right in his contention that the uncontradicted evidence shows that the decedent, Gideon E. Moore, had in his possession a large amount of money belonging to the plaintiff, and that such evidence proves that a fiduciary relation existed between him and the plaintiff in respect to that money. Third. I think, also, that it is clear that the plaintiff has shown that there was a balance in the hands of the defendant on the 21st of April, 1890, amounting to $14,311.08, for which amount the plaintiff is entitled to judgment against the defendant as administratrix. It will be noted by reference to the testimony, that the defendant introduced no evidence upon the trial, and there is nothing to show that the amount admitted to have been in the hands of Moore at the time he wrote the letter to his mother (Exhibit C), was ever repaid to her (see Exhibits B and C). Fourth. It is contended upon the part of the defendant that the case as proven is not one for equitable cognizance, and that the plaintiff has an adequate remedy at law. The case as stated in the complaint was one for equitable cognizance, and the simple fact that an accounting has been rendered unnecessary by the failure of the defendant to produce any evidence upon the trial, should not induce the court to dismiss this action on that ground. I think the case fairly falls within that class of cases of which Bell v. Merrifield, 109 N. Y. 202, is an example. In that case it was held that "the formal relief asked in a complaint is not controlling in determining the nature of the action, and where an answer is interposed the court will grant the judgment which shall be consistent with the case made by the Misc.] Supreme Court, June, 1900. complaint and embraced within the issues, if sustained by the evidence, irrespective of the relief demanded." In that case, Justice Peckham, in delivering the opinion of the court (page 207), says: "At any rate, all the facts necessary to make out a cause of action, of an equitable nature, are alleged in the complaint, and they are not such as are merely incidental to another and totally different cause of action. Such was the case of Barnes v. Quigley, 59 N. Y. 265. An answer having been interposed in this case, the formal relief asked in the complaint is not of much importance, and the court will grant the judgment which shall be consistent with the case made by the complaint and embraced within the issues, Hale v. Omaha Nat. Bank, 49 N. Y. 626. The mere fact that the complaint asks for a money judgment does not necessarily show that the case is one for trial by jury. Courts of equity give judgment for money only, where that is all the relief needed. Murtha v. Curley, 90 N. Y. 372. And if facts are stated in a complaint which show that it is of an equitable nature, and that the cause of action is simply equitable, we do not think that a case is made for a trial by jury under the Code (§ 968), merely because the complaint improperly asks for a money judgment only." See, also, Pendergast v. Greenfield, 127 N. Y. 23; Gilbert v. Morrison, 53 Iun, 446. Fifth. Plaintiff desires to waive her right to an accounting, and, as her counsel states in his brief, to stand upon the balance shown in Exhibit B, as being on April 21, 1890, in the hands of Gideon E. Moore, namely, $14,311.08. A waiver is desired, as counsel states, (1) because the remedy of the plaintiff is sufficient without it, the balance being undisputed, and no payments having been made to the plaintiff since the date of the account; (2) an accounting would be an expensive proceeding, and further diminish the funds of the estate, which even now are insufficient to pay the plaintiff's claim; (3) an accounting would produce delay, and (4) in the end would result in the balance shown by Exhibit B. These reasons commend themselves to my mind, and I think the waiver should be allowed. Counsel also states in his brief that for the same reason the plaintiff waives her claim against the real property purchased with the plaintiff's money, and by the will devised to the defendant individually, and consents to a dismissal of the action, without costs, as against the defendant individually. This, I think, should also be allowed. See Code Civ. Pro., § 3229; Frazer v. Hunt, 18 Wkly. Dig. 390; Sawyer v. Thurber, 14 Civ. Pro. Supreme Court, June, 1900. [Vol. 32. Supp. 5, 7, which 205. Sixth. The six years' Statute of Limitations does not apply. The account, Exhibit B, is dated April 21, 1890, and this action was begun on the 17th of August, 1895. Under the decision of this court in the case of De Crano v. Moore, 50 App. Div. 361; 64 N. Y. is not yet reported in the regular series of the Appellate Division, which was an action brought by a sister of the decedent against the same defendant, the court say: "Indeed, it may be doubtful whether the Statute of Limitations had commenced to run at all. The transaction was either a deposit of money to be paid upon demand, or it was a deposit of money to be held and invested by the depositary as trustee. If the transaction was of the character first mentioned, the statute could only be set running by a demand; and if it was of the latter character the statute would only commence to run after it had been ascertained that the depositary had converted the money to his own use." Seventh. The objections taken to the depositions were made too late. Wright v. Cabot, 89 N. Y. 570; Newton v. Porter, 69 id. 133. I am of the opinion that the plaintiff is entitled to judgment against the defendant as administratrix, in the sum of $14,311.08, with interest at six per cent. from April 21, 1890, with the costs and the usual allowance. Judgment for plaintiff, with costs. THE PEOPLE ex rel. GIUSEPPE BILLOTTI, Relator, v. THE NEW YORK JUVENILE ASYLUM, Respondent. (Supreme Court, New York Special Term, June, 1900.) 1. New York Juvenile Asylum - Power to apprentice children voluntarily surrendered. The New York Juvenile Asylum, incorporated under chapter 332 of the Laws of 1851, has no power to apprentice children, voluntarily surrendered to it, for a term longer than that of their surrender, their parent not consenting. 2. Same Children not before the court on a writ of habeas corpus Jurisdiction. The fact that the children are not before the court, they having been apprenticed by the New York Juvenile Asylum in another State Misc.] Supreme Court, June, 1900. and the persons to whom they were apprenticed refusing to surrender them, affords no reason for dismissing a writ taken out by the father to procure their custody, as the sending of the children to the foreign State was an illegal act and may be regarded as a taking of them beyond the State of New York for the purpose of avoiding jurisdiction. 3. Same Effect of foreign statute legalizing apprenticeship. A statute of the foreign State, legalizing indentures of apprenticeship made between its citizens and the New York Juvenile Asylum, can be given no extra-territorial force and cannot legalize an indenture of apprenticeship which is illegal under the laws of the State of New York. WRIT of habeas corpus. Michael J. Scanlan, for petitioner. Goeller, Shaffer & Eisler (Robert Goeller, of counsel), for respondent. LAWRENCE, J. Under a voluntary surrender by the father of the three children mentioned in the petition to The New York Juvenile Asylum for the period of two years, within a few months after such surrender the asylum assumed to apprentice such children to certain parties in the State of Illinois; the girls until they were eighteen years of age, and the boy until he should become twentyone years of age. This is conceded by the counsel for the respondent in his brief. And the position is taken that there is no difference between the case of a child who has been voluntarily surrendered for a limited period and one who has been committed to such asylum by a police magistrate. This position is untenable. A voluntary surrender for a limited period clearly does not confer power upon the asylum to indenture the child beyond that period, and during the entire time of its minority, as has been done in this case. Section 18 of the charter of the respondent does not profess to give such power. It confers upon the corporation the power in its discretion to bind out or indenture as clerks or apprentices to some profession, trade of employment, children intrusted or committed to its charge; and for a shorter or longer period, not exceeding, however, in the case of girls the age of eighteen years, and in that of boys the age of twenty-one years. See act incorporat Supreme Court, June, 1900. * * 66 [Vol. 32. ing New York Juvenile Asylum, Laws of 1851, chap. 332, § 18, pp. 638, 639. This section must be read in connection with sections 7 and 8 of the charter of the corporation, which provides as follows, as to the voluntary surrender of children: "§ 7. The said corporation may receive and take under its care and management (1) Children between five and fourteen years of age, who, by the consent in writing, of their parents or guardians, shall be voluntarily surrendered and entrusted to it. § 8. Children entrusted to this corporation by the voluntary act of their parents or guardians, shall be deemed to be in the lawful charge and custody of the said corporation; and such surrender shall be evidenced by a writing in form and substance as follows, viz.: 'I, A. B., father, mother or guardian (as the case may be) of C. D. (a boy or girl), aged (blank years), born in (blank), do hereby surrender and entrust to, The New York Juvenile Asylum, for the period of (blank) years the entire charge, management and control of the said C. D., and do hereby assign to, and invest the said corporation with the same powers and control over the said C. D., as those of which I am possessed."" It requires no argument to show that the surrender for a limited time of children between the ages of five and fourteen years, under the sections aforesaid, does not mean the right to dispose of the custody of the child irrespective of the wishes of the parent during its entire minority. If such be the fact, then there is no distinction between a surrender for a limited and for an unlimited period of time. Matter of Forsyth, 66 How. Pr. 180, cited by the counsel for the respondent, is not in point. That case was decided by me in 1881, and relates exclusively to children committed to an asylum by a police justice. The statute makes a clear distinction between the two cases; to wit, the voluntary surrender of the child and its involuntary commitment by a police magistrate in a quasi-criminal proceeding. In this case the surrender of the children was made September 13, 1897, for two years, as is conceded by the counsel for the society. On January 17, 1898, James, aged fourteen years, was indentured to James A. Hasbrouck, of Crescent City, Iroquois county, Ill., for a period of six and seven-twelfths years; Annie, aged ten years, was indentured July 7, 1898, to Charles Lanhead, of Orange Post-office, Iroquois county, Ill., for a period of eight years; Rosie, aged nearly eight years, was indentured September 10, 1898, to Joseph McIntosh, of Gilman, Iroquois county, Ill., for the period of ten and three |