106 Misc. 202 | N.Y. Sur. Ct. | 1919
This is an application by the administratrix to strike from the record herein and be relieved
The authority of the court to relieve a party from a stipulation is an exercise of judicial discretion which may not be invoked without cause shown. Morris v. Press Publishing Co., 98 App. Div. 143; Hering v. Land & Mortgage Co., 53 Misc. Rep. 644.
The sole ground urged by the administratrix for relief from the stipulation of July fifteenth is that her attorney had no authority to make such stipulation and that she never approved his action in this regard. It is not claimed by the administratrix that this stipulation was conceived in fraud, nor is any fact shown in the moving papers which tends to establish that the stipulation, under the facts and circumstances of the case, was unreasonable, or such a surrender of the rights of the administratrix as to constitute an abuse or gross Adolation of them.
Letters of administration Avere issued to the administratrix on the 26th day of October, 1914, upon a peti
It further appears that assets of 'the estate to the value of approximately $61,000 at the time they came into the hands of the administratrix, consisted of nontrust securities, which were either held by the administratrix at the time of the filing of her account on June 13, 1918, or had been disposed of by her during the months of April and May, 1918, at an alleged apparent loss of approximately $9,000.
The account filed June 13, 1918, states that 136 shares of the common stock of the Municipal Gas Company of Albany has not been sold because the market for same is inactive and some of the next of kin are willing to accept a distribution thereof in kind, at a valuation to be fixed by the surrogate. In what manner this willingness on the part of the next of kin to accept a portion of this stock was expressed is not disclosed; one of the next of kin is an incompetent, whose property is in the hands of a committee; the whereabouts of another is unknown and his share, if decreed to
Objections were filed to the account by two of the next of kin and these objections came on to be heard on July 15, 1918. The objections and the testimony offered related to the losses sustained by the estate through the alleged negligence of the administratrix in holding nontrust securities for so long a period and selling them at an apparent loss, to the right of the administratrix to invest the assets in nontrust securities, and to items of disbursements shown in the account for administration expenses.
During the progress of this hearing and at a time when the Municipal Gas stock was the only security remaining undisposed of, and when the administratrix had filed her account for the purpose of a judicial settlement and distribution, her attorney, made the stipulation now sought to be stricken from the record. At that time Municipal Gas Company stock was being offered at 148 and was being sought at 136. The stipulation charged it to the administratrix as if sold on that day at 142. At the time of the disaffirmance of the stipulation on the part of the administratrix and of her application to have it stricken from the record, the stock had depreciated in value and is alleged to have had a market value at that time of between 110 and 113.
The administratrix in her moving papers states that her attorney never told her of this stipulation of July fifteenth and that the only time she had any intimation that she might be called upon to take some stock as part of her share was on July 20, 1918, when her attorney told her that she might be obliged to take
It was the duty of the administratrix to sell the personal property of the deceased for the payment of debts and for making distribution and it is inconceivable how the administratrix could receive her share in cash, as it is alleged she told her attorney on July tAventieth she desired to do, in the absence of an agreement on the part of the other next of kin to accept this stock in lieu of cash, unless the stock Avas sold and the assets converted for a cash distribution.
The facts and circumstances of the case justify the conclusion that the stipulation of July fifteenth was not unreasonable and that, if binding upon the administratrix, the discretion of the court should not be exercised to disturb it; and particularly so when the administratrix permitted the other next of kin to rely upon its terms and to become inactive upon this branch of the case during a period of further depreciation in value of this security.
The stipulation of July fifteenth clearly comes within the above rule. The account of the administratrix was filed for the purpose of judicial settlement and decree for distribution. The gas stock was not converted into cash, but was reported in the account as being in the hands of the administratrix. The distribution of the estate necessarily involved that a disposition of this stock should be provided for, either (1) by its distribution among the next of kin, (2) by its sale and distribution- of proceeds, or, (3) by being charged to the administratrix at a specified price. There was no agreement among the parties, and there is doubt as to whether any was legally possible as to two of the next of kin, by which distribution in kind could be made available; the administratrix had not sold the stock at the time of filing her account and has failed to do so since that time.
From the very nature of the case, the value of this stock was an issue in the accounting proceeding and had to be disposed of before its final determination. The administratrix chose her representative in the selection of her attorney. He has appeared by her authority and was entrusted with the management of her cause. He agreed in open court that she should be charged with this stock at a price which represented its value at that time, and this it would seem he had ample authority to do under his retainer. His con
The stipulation of July fifteenth is, therefore, binding upon the administratrix and the application to strike the same from the record is denied.
The application for relief from the stipulation of October 1, 1918, presents, however, a different situation, although made upon the same ground. This stipulation was not filed until December twentieth and was immediately disaffirmed by the administratrix in a supplemental account filed on that day and through another attorney appearing for her, who has since been substituted as her attorney. By its terms, the objections to the allowance of commissions to the administratrix were sustained, all other objections were withdrawn and certain sums specified in the maximum as allowances to the parties for services of counsel, including the services for the attorney for the administratrix. Among the objections withdrawn by this stipulation was one to the allowance of two several payments aggregating $5,000 paid to the attorney for the administratrix for services to the estate. This objection, upon the necessity for and value of the services rendered, was the subject of testimony at the hearing on July fifteenth and at the subsequent hearing on October first, which sought to establish that the payment of $5,000 to the attorney included compensation for services to the administratrix, personally, in the
I am reluctant to exercise a discretion and refuse relief to a party where such refusal rests upon the integrity of a stipulation made without the party’s consent, by her attorney, by which the attorney himself may possibly derive a benefit, and which she promptly disaffirmed.
The application for relief from the stipulation of October 1, 1918, except so far as it may be affected by the stipulation of July fifteenth, is therefore granted.
Decreed accordingly.