In re Stanley — 116 N.Y.S. 1126

Majority

p. 1126

(62 Misc. Rep. 593.)

In re STANLEY.

(Surrogate’s Court, Kings County.

March, 1909.)

Headnote

Executors and Administrators (§ 87^[1] )—Actions—Compromise.

Where an administratrix brought an action against a corporation for causing her decedent’s death, and a compromise has been arranged, the attorney for the defendant may represent her in an application for an approval of the compromise by the court; but there should be presented to the court something beside the views of the attorney as to the expediency of the settlement

[Ed. Note.—For other cases, see Executors and Administrators, Cent Dig. § 387; Dec. Dig. § 87.*]

In the matter of the administration of the estate of John Stanley, deceased. Application by administratrix for leave to compromise right of action for damages causing decedent’s wrongful death. Continued -for further evidence.

Percy J. King, for petitioner.

The administratrix asks' leave to compromise the right of action for damages against a company, in whose employ the

p. 1127

decedent was, for the "wrongful act,” neglect, or “default” by which the decedent’s death was caused. Having first arranged with her for the proposed compromise, the company has provided the petitioner with the attorney representing her in. this proceeding. The expense for his services will be borne by the said company. The attorney makes affidavit that the amount of the settlement had been agreed upon before he was called in to perfect the legal details requisite to making the payment, and that he is of the opinion that it is to the interest of the estate and of the petitioner that she should be permitted to accept the compromise.

This attorney is only the agent of those who retain him and will pay him. He has assumed no duty toward his nominal client as to the terms of the compromise, and would be superhuman if he could sincerely serve her in that respect. There is no legal reason why he may not represent her in this application, though he has no interest in her welfare; but his views as to the expediency of the proposed arrangement are as worthless to the court as they are to her. There should be submitted the affidavit of the person or persons who have made the investigation upon which the applicant obviously depends in her submission of the facts. There is no reason to doubt the fairness of the compromise. Indeed, upon the statement of the petitioner, it is generous to her; but the court must take care of this widow, who has nobody to care for her, and the statement must be confirmed.

Decreed accordingly.