41 A.D.2d 895 | N.Y. App. Div. | 1973
— Judgment unanimously reversed, without costs, and matter remitted to Supreme Court, Erie County, for further proceedings in accordance with the following Memorandum: In this proceeding for approval of the final accounting by the committee of an incompetent the record is inadequate to permit a final disposition of the litigation. The committee has been awarded an allowance, over and above commissions, which appellant challenges as excessive. The committee’s unverified petition and supplemental petition alone are insufficient to support the award or to permit us to make a determination of a reasonable amount as compensation for services which may have been performed by the committee beyond those usually performed by a fiduciary. The burden of proof is upon the committee to establish by affidavit or testimony the nature and amount of the services performed and the reasonable value thereof (Matter of Evans, 6 A D 2d 409). Such proof should be submitted to Trial Term. Object-ant should similarly have the opportunity by competent proof to establish any improper use of the incompetent’s funds for which he would surcharge the