263 A.D. 542 | N.Y. App. Div. | 1942
Leary and Fullerton, attorneys at law, appeal personally and as attorneys for Nathaniel D. Emmons, from that part of a final judgment which awarded to Leary and Fullerton only an allowance of $100, and which failed to make an allowance to Nathaniel D. Emmons and/or Leary and Fullerton, of at least $2,000, plus $1,058.40 disbursements payable out of the trust estate.
This was an action in equity for the settlement of the accounts of a trustee under a trust agreement and involved the judicial construction of such agreement. (See Schenectady Trust Co. v. Emmons, 261 App. Div. 154; affd., 286 N. Y. 626.) Appellant Nathaniel D. Emmons claimed an interest in the trust and was allowed to intervene in the action although it was finally adjudicated that he had no interest in the trust fund. Upon the final settlement, costs in the nature of allowances were made to all parties payable to their attorneys, except the appellant Emmons who, along with his attorneys, now appeals from the refusal of the Special Term to make any allowances to him. This being an action in equity, the allowance of costs was in the discretion of the court; in fact, on the previous appeal to this court from the interlocutory judgment (261 App. Div. 154) costs were allowed to all parties filing briefs, including the appellant, and made payable out of the trust estate. It cannot be denied that appellant pleaded earnestly for what he believed to be the proper construction of the trust agreement. Through his attorneys he filed extensive briefs and, at least in this court, made an able argument and was of genuine assistance to the court in determining the questions involved. These questions were intricate and required considerable research and study. Also, as long as appellant’s claim to an interest in the trust was not determined there could be no certainty as to the rights of the other parties therein, so that, while appellant was not a necessary party to the action, he was in every sense a proper one and it was to the advantage of all concerned that he be a party and that there be a judicial determination of his rights. Only in this way could it safely be said with finality that his claim to a share of the trust estate was not well founded. Nor was his claim baseless on its face. Under all these circumstances the Special Term had ample power in the exercise of its sound discretion
We feel, however, that we cannot reach this question as the record now stands. The interlocutory judgment decreed that the appellant Nathaniel D. Emmons had no interest in the trust estate or in this action and no standing to object to any provisions of the trust agreement. It directed the trustee to account and that all parties to the action, except the appellant, should have notice of the accounting. It awarded the plaintiff taxable costs against appellant while reserving the question of all other costs and allowances for the final judgment. This interlocutory judgment was affirmed by our court (261 App. Div. 154) and our decision was in turn affirmed by the Court of Appeals (286 N. Y. 626). Although in our court the question of costs in the court below was not raised and we allowed costs to all parties filing briefs, payable out of the trust estate, including the present appellant, the decision of the Court of Appeals granted costs against the appellant. The judg
The appeal of Leary and Fullerton, personally, is not strengthened by the fact that they were permitted to appear belatedly in the action as attorneys for the Eastern New York Orthopaedic Hospital School. The Special Term directed that $100 be paid to them out of the share of their client, and we are not disposed to disturb this allowance.
Hill, P. J., and Heffernan, J., concur; Schenck and Foster, JJ., concur in the result.
Appeals of Nathaniel D. Emmons and Leary and Fullerton, personally, dismissed, without costs.