201 Misc. 668 | N.Y. Sur. Ct. | 1951
In this judicial settlement proceeding respondent, Esther Pailthorpe, seeks allowances for her counsel in various proceedings had in this estate during the last five and more years.
Respondent, Esther Pailthorpe, also participated in a proceeding to construe the will herein. (Matter of Mass, 65 N. Y. S. 2d 93.) Her request for $200 counsel fees in that proceeding is reasonable, and is allowed.
In their account the executors listed some real estate and asked this court to determine certain questions regarding it. Thereafter the executors instituted in the City Court of Rochester an eviction proceeding against respondent, Esther Pailthorpe, to remove her from one parcel of said real estate, and demanded judgment for back rent. The respondent interposed an answer to the action, instituted a partition action in the Supreme Court with respect to said real estate, and moved to consolidate the City Court action therewith, which was done. The executors then moved to dismiss the consolidated action on the ground that this court had already acquired jurisdiction of the matter in this judicial settlement proceeding, and that therefore the Supreme Court should not entertain the action. The Supreme Court granted such motion without costs. Respondent seeks an allowance from the estate for counsel fees for services in those proceedings.
Had respondent moved to dismiss the City Court action for want of jurisdiction, presumably it would have been dismissed with costs; and very little legal work would have been entailed. Having misconceived her remedy and brought the partition action and having the City Court action consolidated therewith, she gave the executors the opportunity to collect their (attorneys’) thoughts and move, in effect, to discontinue their own eviction action and dismiss the partition action, with which it had been consolidated, without costs. The steps taken by respondent were unnecessary, as demonstrated by the result.
A litigant ordinarily must pay his own attorney, except for the statutory costs which may be awarded. The Supreme Court having dismissed the action without costs, this court
Respondent also seeks an allowance for counsel fees in connection with an examination of the executors and an auditor under section 263 of the Surrogate’s Court Act, for briefing and arguing the question of the scope of such an examination, which resulted in a decision of this court disclaiming jurisdiction (Matter of Mass, 66 N. Y. S. 2d 811), and for instituting an action in Supreme Court against the executors and the executors of testator’s surviving partner, since deceased, et al. In the latter action the respondent withstood a motion for dismissal before Mr. Justice Cribs (Pailthorpe v. Tallmann, 72 N. Y. S. 2d 784) and a trial was had before Official Referee Nath ax D. Lapham (Pailthorpe v. Tallmann, 87 N. Y. S. 2d 822) and an appeal from the latter’s decision was affirmed by the Appellate Division (276 App. Div. 823). A trial of another phase of the case was then had before Official Referee Nathax D. Lapham, resulting in a decision awarding judgment to the executors against the estate of the deceased partner in the sum of $633.57 and costs, based upon clerical errors found in the partnership audit; and Official Referee Lapham allowed to this respondent for counsel fees in said Supreme Court proceeding the sum of $200, and allowed $100 to the guardian ad litem for the infant, Kenneth Mass, and $230.25 costs to the respondent and said guardian ad litem jointly.
The resulting net gain to the estate by reason of said action was $333.57, subject, however, to estate expenditures allowed by this court during such litigation for records and briefs on appeal therein in the sum of $565.06. The latter amounted to a proper expenditure of estate funds for estate purposes and is not to be charged against the share of any legatee. Thus there was no net gain to the estate by reason of the Supreme Court action.
No appeal was taken from the decision of Official Referee Lapham granting allowances in the Supreme Court action, and respondent accepted that court’s allowance for her counsel. The question of allowance is not, therefore, now open for this court to decide. Even if it were, however, there is no basis for granting an allowance to respondent’s counsel herein.
As a rule services performed for a distributee or legatee must be compensated for by such client, and not paid out of the estate generally. (Matter of Loomis, 273 N. Y. 76; Cowen v. Stine, 275 App. Div. 915, affd. 300 N. Y. 698: Matter of Sielcken. 176
Respondent can get no help from the decision in Matter of Seppala (149 Misc. 479) for the case at bar is not one in which the court has, directly or by implication, appointed respondent to act in lieu of the fiduciary. That case may be worthy of note later, however, in considering the allowance to the special guardian.
Allowances to the attorneys for the executors and to the special guardian will be fixed upon presentation of the decree herein.
Submit decree in accordance with this opinion.
