49 A.D.2d 689 | N.Y. App. Div. | 1975
Order unanimously modified in accordance with memorandum and as modified affirmed, with costs, to Manufacturers Hanover Trust Company. Memorandum: In granting the order of December 21, 1973 it appears that the court misunderstood the intent of Hanover’s counsel when the latter stated that it was not then making an application for attorney’s fees but only for a determination that Rogerson, its cofiduciary, is liable for Hanover’s expenses in prosecuting him for his self-dealing. Hanover’s counsel stated specifically that it as executor sought to have the estate "made whole insofar as that part of the prosecution of this lawsuit involving Mr. Roger-son’s self-dealing is concerned”. He added that in a letter to counsel the court had directed that at the hearing on the objections to the account "detailed requests for allowances will be made by the plaintifis” (emphasis added); and that counsel for Hanover [defendant] agreed with counsel for Rogerson [defendant] that defendants’ application for allowances should be made later. In its memorandum the court demonstrated its misunderstanding of the position of Hanover’s counsel when it wrote that he "does not seek attorney’s fees but a reimbursement of the expenses incurred” because "intertwined in its appearances is its defense in the actions brought against it”. Despite the general rule in the United States that a party to a lawsuit cannot require his opponent to pay his legal expenses therein (see Alyeska Pipeline Serv. Co. v Wilderness Soc., 421 US 240;
