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. 2.)

Headnote

Attorney and client — allowance to attorney for trustee.

Appeal by defendant Beloe from so much of an order of the Supreme Court, made at Kings County Special Term and entered in the Kings county clerk’s office on the 1st day of November, 1907, as directs the payment by the substituted trustee of the sum of §1,000 to the plaintiff’s attorneys as a condition of the withdrawal of the plaintiff’s appeal from the judgment herein.

The plaintiff appears to be insolvent and a reversal of the judgment upon appeal would result in further depletion of the trust fund, while an acceptance of the condition of the withdrawal of the appeal will end the controversy between the plaintiff and the substituted trustee, and also remove possibility of an action by the plaintiff to recover from the appellant the excess amount paid to her testator. Originally the claim of the plaintiff’s attorneys was §7,500; by agreement this was reduced to §3,500. The referee allowed them §500 and found that §2,000 in addition would have been a proper credit, if paid. This §2,000 Mr. Justice Marean allowed, and the §1,000 in question here makes up the amount of $3,500. The order simply carries out the terms of the offer of settlement, which it appears was not improperly accepted. The order, in so far as appealed from, should be affirmed, with ten dollars costs and disbursements. Jenks, Hooker, Gaynor and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.