Case v. Beloe — 125 A.D. 906

Majority

p. 906

David K. Case, Individually and as Trustee, Respondent, v. Sarah Cecile Beloe, as Executrix, etc., of Charles R. Porterfield, Deceased, Appellant, Impleaded with George S. Billings, as Substituted Trustee, and Others, Respondents.

(No. 1.)

Headnote

Attorney and client—trust — allowance to attorney for trustee — discretion of court — objection by representative of person benefited.

Appeal from an order of the Supreme Court, made at the Kings County Special Term and entered in the Kings county clerk’s office on the 4th day of September, 1907, denying the defendant Beloe’s motion to modify a judgment theretofore entered herein for the sum of §22,508.75 in favor of the defendants and against the plaintiff, by striking therefrom an allowance of §2,000 and costs of §233.35 made to the plaintiff’s attorneys.

The judgment ip this case was entered upon the report of a referee and represents moneys which the plaintiff trustee without authority paid to two beneficiaries, one of whom was the appellant’s testator. The latter did not object to the form of the judgment, nor did any of the many other defendants, and the appellant is the representative of one who received from the plaintiff many thousands of dollars more than the latter should have paid him under the trust deed. The referee allowed the plaintiff’s attorneys $500, but found that §2,000 in addition would have been a proper credit to allow the trustee for his attorneys, if it had been paid. The allowance objected to enables this $2,000 to be paid. It was a matter of discretion. The order denying the motion to modify the judgment should be affirmed, with ten dollars costs and disbursements. Jenks, Hooker, Gaynor and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.