In re State Trust Co. — 22 N.Y.S. 601

Majority

p. 601

(68 Hun, 97.)

In re STATE TRUST CO. In re HALSTED et al.

(Supreme Court, General Term, First Department.

March 17, 1S93.)

Headnote

Attorneys’ Fees—Allowance of Interest.

On final accounting by a trustee it appeared that, in a former proceeding to remove the assignee of the estate, costs were awarded to the attorneys by an' order merely, but no judgment was entered. It further appeared that the costs, with interest from the date of allowance, amounted to more than the fund in the hands of the trustees, but, if interest were excluded, a considerable sum would be left for distribution among the creditors of the estate; and also that the sum awarded to the attorneys was ample compensation for the services rendered, without the addition of interest. Meld, that interest would not be allowed.

Appeal from special term, New York county.

Final accounting of the State Trust Company, as trustee of the estate of Augustus M. Halsted and Avery D. Putnam. From so much of an order as refused costs on the accounting, and interest on costs awarded to the attorneys in an action brought to remove an insolvent assignee, S. F. Cowdrey, F. H. Cowdrey, H. Cowdrey, and L. L. Van Allen appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

Thomas Allison, for appellants.

J. Warren Lawton, for respondent.

In the account presented by the trust company it charges itself with $2,672.93, moneys collected, and credits itself with $374.85, paid out for legal services and expenses, and $131.39, for its commissions; leaving $2,121.69. The account so presented was not contested before the referee or at special term, and it was allowed as made out. The trust company made no claim before the referee or at special term for the costs of the accounting, and we are unable to see how any could have been incurred, as its account was allowed as rendered, without contest. Besides, the trust company has not appealed from the order of the special term, and no question can be raised in this court upon the refusal to allow it costs on the final accounting. By an order, but not by the judgment, entered December 20,1869, in the action, for the removal of the assignee, the attorneys for the plaintiffs were allowed $706.31 costs, and the attorneys for the defendants $518 costs. The interest on the costs of the plaintiffs’ attorneys amounted to $1,022.45, and on the costs of the defendants’ attorneys to $749.86. The special term refused to allow interest on the costs of the attorneys, and they appeal from that part of the order.

p. 602

Whether interest should be allowed is the only question before the court. If it is allowed, the claims of the attorneys will exceed by $874.93, the amount in the hands of the trust company; but, if interest is not allowed, there will be left $897.38 for distribution among the creditors. It is urged that the statute gives interest on a judgment for costs; but the answer to this is that no judgment was entered in this case for a fixed sum for costs. The costs might have been included in the judgment when originally entered, or they might have been subsequently taxed and inserted therein; but neither course was taken, and so, technically, a judgment for costs was not entered. Believing that the compensation awarded to the attorneys is ample for the services rendered, without the addition of interest, and that something should be left for the creditors, we think the order should be affirmed, with costs. All concur.