Opinion
March 20, 1928.
Carlton A. Fisher, William J. Baker and Stephen K. Pollard [ Claude T. Taggart of counsel], for the plaintiff.
Clarence M. Platt [ George B. Draper of counsel], for the defendant.
This is a motion to dismiss the complaint on the ground that it does not state a cause of action. The plaintiffs seek to recover of the city of Rochester the moneys received by it, under a clause of the will of Morton W. Rundel, aggregating the sum of $353,968.22 on December 17, 1919, when that amount was paid to the city. The will of the testator provided that the city should use the moneys bequeathed to it for the purpose of constructing a "Rundel Memorial Building" to be used for the purpose of a library and fine arts. It is claimed that the city has unreasonably delayed the construction of the building, and that the plaintiffs, who are the heirs at law and next of kin of the testator, are entitled to the funds which the city has neglected to use. The complaint attaches a copy of the will, from which, and from the complaint itself, it appears that there is an uncompleted trust, at the expiration of which the city will receive additional moneys for the purposes specified in the will. These additional moneys will amount to a very considerable sum and justify the city in delaying the use of the funds until the trust has been executed and the principal becomes available for the use of the city. Under the terms of the complaint and the will, which is made a part thereof, it appears that all of the moneys designed by the testator for the use of the city are not available, and the city is, therefore, justified in delaying its plans for carrying out the purposes of the testator in connection with the construction of a library and fine arts building, until all the moneys are available for such use. The city might anticipate the value of the trust fund, but it is not, legally, required to do so, and may wait until the trust has been executed. The complaint, therefore, on its face, shows that there is no cause of action and should be dismissed.
So ordered.