Majority
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In the Matter of the Application of Joel Lawrence Scidmore and Byron Graves Scidmore for the Sale of Real Estate Devised under the Last Will and Testament and Codicil Thereto of Ann M. Perrott, Deceased. Charles E. Sammis, Appellant, v. Joel Lawrence Scidmore, Byron Graves Scidmore and Allison E. Lowndes, as Special Guardian for Rowland Miles, 2d, and Others, Respondents.
Order confirming report of referee, in so far as appealed from, modified by increasing the amount allowed to Charles E. Sammis from $5,000 to $9,120.38, being five per cent of the sales price. As so modified, the
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order is affirmed, with ten dollars costs and disbursements to appellant, payable out of the estate. The testimony of the witnesses in behalf of Charles E. Sammis, the real estate broker, was that the customary charge for a sale of property similar to the one involved herein is five per cent of the sales price. This testimony was uneontradieted, and it was neither improbable nor open to suspicion. It should, therefore, have been taken as the basis of the allowance for the services of Sammis. Lazansky, P. J., Rich, Young, Seeger and Carswell, JJ., concur.