In re the Estate of Dowling

| N.Y. App. Div. | Feb 18, 1946

In a discovery proceeding, decree of the Queens County Surrogate’s Court directing appellant to deliver to petitioner the sum of $750, with interest thereon, modified on the law and the facts by striking out the second ordering paragraph and by adding after the words “ together with interest thereon ” in the third ordering paragraph the following; “ at the rate of two per cent, per annum”. As so modified, the decree is unanimously affirmed, with costs to respondent payable by the appellant. Appellant was not entitled to retain moneys of the estate which he had received as compensation for legal services. The sum which appellant received was part of a fee of $2,500 which the appellant’s associate, who was both the executor and his own attorney, allocated to himself as a counsel fee in advance of an accounting. On the accounting, the counsel fee was disallowed. If anyone was obligated to compensate appellant for his services, it was the appellant’s associate and not the estate. (See 7 Wait on New York Practice [4th ed.], p. 945.) Present — Lewis, P. J., Hagarty, Carswell, Johnston and Nolan, JJ.