In re Wills

| N.Y. App. Div. | May 29, 1914

Per Curiam:

The unsuccessful petitioner in a proceeding for the appointment of a committee of the person and of the property of an alleged incompetent appeals from the order of the County Court directing him to pay to each of three commissioners, appointed in the proceeding, $250.

The proceeding is regulated by statute. (Code Civ. Proc. chap. 17, tit. 6; Hughes v. Jones, 116 N.Y. 67" court="NY" date_filed="1889-10-08" href="https://app.midpage.ai/document/hughes-v--jones-3593080?utm_source=webapp" opinion_id="3593080">116 N. Y. 67.)

Section 2333 of the Code of Civil Procedure reads: “The commissioners are entitled to such compensation for their services as the court directs. The jurors are entitled to the same compensation as jurors upon the trial of an issue in an action in the same court. The petitioner must pay the compensation of the commissioners, sheriff, and jurors.”

Rule 71 of the General Rules of Practice reads: “On the execution of a commission of lunacy, etc., the commissioners, for every day they are necessarily employed in hearing the testimony and taking the inquisition, shall be entitled to an allowance to be fixed by the court, not exceeding ten dollars for each day to each of such commissioners.”

This rule is binding upon all the courts in this State except the Court for the Trial of Impeachments and the Court of Appeals. (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 94.)

Giving the evidence upon which the order was made its full effect, and construing that provision of the rule “ every day * * * necessarily employed in * * * taking the inquisition ” as including, as a subject for compensation, any service essential to the judicial determination called an inquisition (Hughes v. Jones, supra), the commissioners were necessarily employed seventeen days in hearing the testimony and taking the inquisition. The court was without power to make an allowance exceeding ten dollars for each day to each commissioner. The order should be modified by reducing the allowance to $170 for each commissioner, and, as modified, affirmed, without costs of this appeal.

In affirming this order we do not wish to be understood as approving the practice of issuing a commission in these proceedings while a Trial Term of the court, where the proceedings can he conducted expeditiously and inexpensively, is in session.

Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.

Order of the County Court of Kings county modified by reducing the allowance to $170 for each commissioner, and as modified affirmed, without costs of this appeal