| N.Y. App. Div. | Aug 15, 1905
It is no longer open to doubt in this State that a surrogate may, in his discretion, upon the settlement of the accounts of an executor or administrator, deny him the statutory commissions if he has been guilty of misconduct, notwithstanding the requirement of section 2730 of "the Code of Civil Procedure that upon the settlement of the account of an executor or administrator the surrogate must allow to him for his services the commissions fixed by law. (Matter of Rutledge, 162 N.Y. 31" date_filed="1900-02-27" court="NY" case_name="In Re the Judicial Settlement of the Accounts of Rutledge">162 N. Y. 31.) The exercise of this discretion is re viewable by the Appellate Division. In the case at bar the ' administratrix has been guilty of long-continued misconduct, as has been explicitly declared not only by the Appellate Division but by the Court of Appeals. (Matter of Gall, 47 A.D. 490" date_filed="1900-02-15" court="N.Y. App. Div." case_name="In re the Estate of Gall">47 App. Div. 490 ; 182 N.Y. 270" date_filed="1905-06-13" court="NY" case_name="In Re the Accounting of Gall">182 N. Y. 270.) It is not necessary "again to rehearse the circumstances of her maladministration; but it is enough to say that we think her action has been such as ought to deprive her of all commissions and costs in this proceeding.
The decree of the Surrogate’s Court should, therefore, be reversed so far as the commissions and costs are concerned, and the amounts awarded on account of these items should be stricken therefrom, with the costs and disbursements of this appeal to the appellant.
Hirschberg, P. J., Bartlett, Jenks, Rich and Miller, JJ., concurred.
Decree of the Surrogate’s Court of Kings county reversed so far as the commissions and costs are concerned, and the amounts awarded on account of these items stricken therefrom, with costs and disbursements of this appeal to the appellant Charles F. Gall.