In re Hammer

Section 2692 of the Code of Civil Procedure provides that an administrator may pay from the funds or estate in his hands, from time to time, his legal and proper expenses of administration necessarily incurred by him, and that such expenses and disbursements shall be set forth in his account when filed, and settled by the surrogate. It follows, therefore, that the public administrator is entitled to pay his proper expenses of administration necessarily incurred by him, subject to review, when his final acounts are settled by the surrogate.

The preparation of letters and other documents in typewritten form and the employment of a stenographer for that purpose have become such well-recognized practices ,'in ¡business and in the practice of the law as to amount almost to necessities. The Legislature did not confer upon the public administrator the right to appoint a stenographer whose salary is payable out of the public funds (People ex rel. McDonnell v. Prendergast, 167 App. Div. 140 , 152 N. Y. Supp. 938 , affirmed, 217 N. Y. 604 , 111 N. E. 1096 ); hence, if the court holds that an item of expense for stenography and typewriting is improper, the public administrator must either do the typewriting himself or pay for it and for the services of a stenographer out of his salary or commission. I should be unwilling to hold that an allowance for a reasonable expenditure for stenography and typewriting is improper in every case, unless adherence to the decision of some appellate tribunal makes this necessary. In People ex rel. McDonnell v. Prendergast, supra, there is a statement in the opinion which at first glance might appear to favo-r such a holding, for the court says:

“I am of opinion * * * that it was intended that he should, at his own expense, employ such services as might be necessary to enable him properly to perform the duties of the office.”

If the question before the court at that time had been upon the right of the public administrator to an allowance upon his final accounting for moneys expended for stenographic work, I would feel concluded by the statement quoted, but the contrary appears to be the fact from the following, also appearing in the opinion:

“The general rule is that an administrator must personally perform, or at his own expense provide for the performance of all clerical duties incident to the administration (Matter of Binghamton Trust Co., 87 App. Div. 26 , 83 N. Y. Supp. 1068 ); but we are not now concerned with the question as to allowance to the public administrator for expenses for clerical or other work.”

While the rule is as stated, allowances have been made to executors for payments to bookkeepers, agents, clerks, and even for office rent. Merritt v. Merritt, 32 App. Div. 442 , 452, 53 N. Y. Supp. 127 , affirmed, without opinion 161 N. Y. 634 , 57 N. E. 1117 ; Wells v. Disbrow, 20 N. Y. Supp. 518 ;^[1] Garvey v. Owens, 12 N. Y. Supp. 349 ;^[2] Matter of Nesmith, 140 N. Y. 609 , 35 N.