Walton v. Collins — 57 N.Y.S. 244

Majority

p. 244

(38 App. Div. 439.)

WALTON v. COLLINS.

(Supreme Court, Appellate Division, Second Department.

March 14, 1899.)

Headnote

Trusts—Counsel Fees.

An action being one not for distribution of a trust fund, but to compel the old trustee to pay over to the new one the fund to which the latter is entitled, the judgment should allow none of the parties or attorneys more than statutory costs. Payment of any charge of counsel for plaintiff for services for the benefit of the fund must be obtained by an application to the court in a proceeding directly instituted for that purpose, or by agreement with the trustee; the amount paid, if the latter course is pursued, being subject to review in the matter of the administration of the trust.

On rehearing.

Denied.

For former opinion, see 56 N. Y. Supp. 1045 .

We do not regard this action as being one for the distribution of the fund, but to compel the old trustee to pay over to the' new one the fund to which the latter is entitled: We think that, in such an action, it is not proper that the judgment should go further than to allow' statutory costs to any of the parties or the attorneys. Whatever charge the attorneys or counsel for the plaintiff may have for their legal services rendered for the benefit of the fund, the payment of such allowance must be obtained by an application to the court, in a proceeding directly instituted for that purpose, or by agreement with the trustee. In case the latter course is taken, the propriety of the amount paid, of course, will be subject to review in the matter of the administration of this trust.

Motion for reargument denied.