62 Misc. 600 | N.Y. Sur. Ct. | 1909
The administrator is a resident of Philadelphia, and he intrusted all the matters in the administration of this estate to his attorney in (this proceeding. The account 'filed discloses that receipts amounting to $3,164 have been consumed in ;the expenses of various litigations, except that a balance of ;$405.88 remains to be distributed to those entitled thereto, subject to the deduction of the commissions of the .administrator and the expenses of this accounting. The debts of the estate, being judgments for costs recovered against the administrator in some of the litigations, and aggregating .$1,387, besides interest, are unpaid. Objections are filed by the judgment creditors and certain of the next of kin. '.
At this point the plaintiff should, in my judgment, have rested and accepted his defeat as final. Twice had the Appellate Division expressed its opinion that Thoma’s story was incredible and his evidence unworthy of belief, and two different juriesi had, notwithstanding those opinions, unanimously agreed that Thoma had told the truth. The third trial was conducted with great fairness, and no occasion for criticism was found upon the appeal that was taken worthy of any comment whatever, and,
The further appeal to the -Court of Appeals was equally ill advised, since that court could hardly be expected under the circumstances to reverse a judgment as to facts which had -been so thoroughly litigated in the court below. The question of the competency of Mr. Thoma as a witness under section 829, Code-of Civil Procedure, might have been debated in that -court if the question had. been worthy of serious argument, but in a brief of forty-eight pages presented to that court by the appellant there is only one point upon this subject, and it contains only eight lines of printed comment. This, in my judgment, was fully as-much as -the question deserved, for Mr. Thoma was not a party to the record, he had no direct interest in the result, and the defendant did not -acquire -a right to the fund in controversy from, through or under him. At -any rate, the -affirmance in the Court of Appeals was also without opinion.
In further criticism of the lack of prudence with which this litigation was -conducted, it -appeared that the administrator in March, 1908, in an action for money ha-d and received commenced by him in the Supreme 'Court, recovered by default and procured to be entered against Thoma a judgment for the sums •of money collected by him from savings banks, upon which judgment an execution against the body of the defendant was issued, under which he was imprisoned and held in confinement until released under a proceeding had in the Supreme Court. The effect of the entry of this judgment was to destroy the remedy of the Union Dime Savings Institution over -against Thoma in' case of a recovery against it for an unauthorized payment to Thoma, and as a consequence of this first proposition it operated, as a complete bar and defense to the action of the administrator against it, iSo complete and perfect was this defense that the action would have been dismissed on motion if such motion had been made upon either the second or the third trial upon the fact of the entry of the judgment being shown. Fowler v. Bowery Savings Bank, 113 N. Y. 450. This decision of the Court of Appeals was rendered in 1889. It ought to have been known' to 'the counsel for the administrator when the judgment was entered against Thoma in 1903, and. at all subsequent times. It ■was negligence in him not to know what the law; was on this sub
The finding and report of the learned referee will be modified by disallowing $250 of the counsel fee allowed by him, and $389.84, the disbursements of the two appeals from the judgment rendered on the third trial, and the account will also be surcharged with the judgments for costs recovered against him on said appeals, amounting to $307.14, together with the interest thereon.
The contentions of the objeetants relative to the management by the attorney for the administrator of the foreclosure suit and the loss of the judgment owing to the estate cannot prevail. The administrator was not obligated to bid at the foreclosure sale when he was without funds to do so, and I cannot charge him with notice that his account would be disapproved so as to leave any part of the estate in his hands. The referee has not found the facts of this matter, and he was not duly requested to make any findings with relation thereto. The exception to his “ refusal ” to make such findings is, therefore, not a suitable foundation upon which to make a decision in reversal of his action. Ini all other respects the report of the referee is confirmed. The administrator will be awarded commissions, but he will be charged personally with the costs and disbursements: of the contest.
Decreed accordingly.