In re Holland Trust Co. — 27 N.Y.S. 687

Majority

p. 687

In re HOLLAND TRUST CO.

(Supreme Court, General Term, First Department.

February 16, 1894.)

Headnote

Attorney and Client—Order to Pay over Money.

Where an attorney, employed by a guardian to collect money belonging to an infant’s estate, retains the amount of his charges, and there is no dispute as to his services, he will not be ordered to pay over to the estate the amount so retained by him.

Appeal from special term, New York county.

Application by the Holland Trust Company to compel an attorney to pay over money. From an order in favor of petitioner, the attorney appeals. Reversed.

p. 688

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

Anson B. Stewart, for appellant.

Edward Russell, for respondent.

It is difficult to imagine upon what theory this motion is founded. There is no claim but that the attorney rendered the services charged for and is entitled to be paid therefor. But it is said that his client has charged the same to his account as guardian, when he should have paid for them himself. Even if this were so, it is difficult to see how the court can summarily take this money out of the attorney’s pocket. All charges of administration are primarily the personal debts of the administrator, but if incurred properly, for the benefit of the trust fund, they will be allowed to the administrator upon the settlement of his accounts. So, in the case at bar, the guardian was liable for the services of his attorney. If they were improperly charged to his ward, the only way to settle this matter was to have the accounts of the guardian passed, and to have him charged with whatever was due. The order appealed from should be reversed, with $10 costs and disbursements, to be paid by the petitioner, and the motion denied. All- concur.