Case v. Beloe — 109 N.Y.S. 168

Majority

p. 168

CASE v. BELOE et al.

(Supreme Court, Appellate Division, Second Department.

March 11, 1908.)

Headnote

Trusts—Actions—Credits—Counsel Fees.

The court, in an action by one individually and as trustee against the substituted trustee and beneficiaries, may in its discretion make an allowance in the judgment for the payment of a proper sum to the attorneys of the trustee.

Appeal from Special Term, Kings County.

Action by David K. Case, individually and as trustee, against Sarah Cecile Beloe, as executrix of Charles R. Porterfield, deceased, and others. From an order denying a motion to modify the judgment for defendant against plaintiff, by striking therefrom an allowance of $2,000 and costs of $233.35 made to plaintiff’s attorneys, defendant Sarah Cecile Beloe, as executrix, appeals. Affirmed.

Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.

David Bernstein, for appellant.

T. Ellett Hodgskin, for respondent.

The judgment in 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 $10 costs and disbursements. All concur.