p. 45In the Matter of the Final Accounting of The State Trust Co., Trustee of the Estate of Augustus Halsted et al.(Supreme Court, General Term, First Department,Headnote
Attorneys—Intebest.On the final settlement of an estate, interest will not be allowed oncosts awarded to attorneys in a proceeding to remove a former assignee, by order and not by judgment, where it appears that the amount awarded was a sufficient compensation for the services rendered, and the allowance of interest would make the claim for costs exceed the assets in the trustee’s hands.
Appeal from judgment entered upon the report of a referee.
Thomas Allison, for app'lts; J. Warren Lawton, for resp't.
In the account presented by the trust company it charges itself with $2,672.93, moneys collected, and credits it
p. 46self 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.
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 of 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.
Yak Brunt, P. J., O’Brien and Follett, JJ., concur.