Walton v. Collins — 38 A.D. 439

Majority

p. 439

William P. Walton, as President of the Board of Officers of the Eleventh Regiment of the National Guard of the State of New York, a Voluntary Association Composed of more than Seven Members, Respondent, v. Charles H. Collins, Appellant.

Headnote

Substituted trustee—what costs a/r.e allowable in an action to compel a transfer of the trust fund.

In an action to compel a former trustee to transfer the trust fund to a substituted' trustee, only statutory costs should be allowed; and an allowance to the attorneys or counsel for the substituted trustee for legal services rendered for the benefit of the fund must be obtained in a proceeding directly instituted for that purpose, or by agreement with the substituted trustee.'

Motion by the plaintiff, William P. Walton, as president of the board of officers of the Eleventh Regiment of the National Guard of the State of New York, a voluntary association composed of more than seven members, for a reargument of an appeal taken by the defendant from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of December, 1897, upon the decision of the court, rendered after a trial at the New York Special Term, and also from a final judgment in favor of the plaintiff entered in said clerk’s office on the 9th day of April, 1898.

This appeal was transferred from the- first department to the second department.

The opinion handed down on the argument is reported post, page 624.

p. 440

Abner C. Thomas, for the motion.

Gha/rles IT. Gollms, opposed.

Wé do not regard this action as being one for the distribution of the fund, but to compel the old trustee to pay over to the new one the fund to which the latter is entitled. We think that in such an action it is not proper that the judgment should go further than to-allow statutory costs to any of the parties or the attorneys. Whatever charge the attorneys or counsel for the plaintiff may have for their legal services rendered for the benefit of the fund, the payment of such allowance must be obtained by an application to the court in a proceeding directly instituted for that purpose, or by agreement with the trustee. In case the latter course is taken, the propriety of the amount paid, of course, will be subject to review in the matter of the administration of this trust.

Motion for reargument denied.