In re the Estate of Matthewson — 19 N.Y. St. Rep. 208

Majority

p. 208

In the Matter of the Estate of John Matthewson, Deceased.

(Surrogate's Court, New York County,

Filed November 21, 1888.)

Headnote

Surrogate’s court—Practice—Proceeding to sell real property— Allowance to petitioner—Code Git. Pro., § 2561.

In proceedings taken by tbe creditors to procure the sale of the property

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of a decedent, tbe petitioning creditor is not, nnder the Code, entitled to per diem allowance. Under Code Civil Procedure, section 2561, the surrogate may, in his discretion, allow such petitioning creditor, in addition to the disbursements, where there has been no contest, a sum not exceeding twenty-five dollars, or where there has been a contest, seventy-five dollars. Where the trial or hearing upon the merits before the surrogate necessarily occupies more than two days, ten dollars for each additional day may be allowed.

Olin, Rives & Montgomery, attorneys for petitioning creditors.

In this matter I am of opinion that the petitioning creditor is not entitled to a per diem allowance. Subdivision 4, section 2793, Code Civil Procedure, provides that, out of the remainder of the moneys arising upon a mortgage, lease or sale, must be paid the costs of the special proceeding awarded to the petitioner in the decree. It is clear that the intention and effect of this subdivision is to give costs to the petitioner in the proceeding, whoever he may be, whether executor, administrator or creditor. By section 2561, the surrogate, in his discretion, in a case other than one of those specified in section 2560, may, upon rendering a decree, fix such a sum to be allowed as costs, in addition to the disbursements, as he deems reasonable, not exceeding, where there has not been a contest, twenty-five dollars, or where there has been a contest, seventy-five-dollars; and in addition thereto, where a trial or hearing upon the merits before the surrogate necessarily occupies-more than two days, ten dollars for each additional day. Section 2563 provides that the executor, administrator or freeholder disposing of the property must be allowed * * * not exceeding five dollars for each day actually and necessarily occupied by him in disposing of the property, and such a further sum, etc., for the necessary services of his attorney and counsel therein as the surrogate thinks reasonable. It will be seen that there is no provision in the last mentioned section for an allowance to any one, not even to those named therein, except for actual services rendered in disposing of the property; whereas subdivision 4, section 2793, expressly contemplates the payment of the costs of the special proceeding.

If there can be any doubt as to who is meant by section 2563, whether it only includes an executor, administrator and freeholder, or might, under some circumstances, be held to also include the petitioner in the special proceeding in which the sale of decedent’s real property is made, suck doubt will be dispelled by reading section 2765, which provides that “a decree directing that real property be mortgaged, leased or sold, etc., must direct that the mortgage,,

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lease or sale be made by the executor or administrator, or in case of his failure to do so, by a freeholder,” etc. It is evident, on reading sections 2563 and 2565 together, that the one directs by whom the sale shall be made, and the other prescribes the amount to be allowed him for making such sale, which can only be made by the executor, admixiistrator or freeholder, and in no case by the petitioner. The petitioning creditor is, therefore, governed by section 2561 for the amount of his costs. There being no contest in this proceeding, he is allowed twenty-five dollars. The disbursements claimed are not all taxable. The item of one dollar for affidavits and postage is allowed. The freeholder is allowed seventy-five dollars for his service" and $29.68 his disbursements.'