Blake v. Waterfront Commission of New York Harbor , 5 A.D.2d 979 ( 1958 )

Appeal by the Administrator of Veterans’ Affairs from so much of an order, which judicially settled the final account of a committee of an incompetent veteran, as allows the committee a balance of his commissions of $486.69, grants an extra allowance to the committee of $400 and awards the special guardian $400 for his services. Objection to the allowance of commissions and fees to the committee is predicated on the committee’s failure, during the entire period of his committeeship of approximately seven years, to file his annual inventories and account within the time provided by section 1384-i of the Civil Practice Act. There can be no question of the committee’s inexcusable tardiness. But while such delays did cause some inconvenience to the Administrator, they did not result in any detriment or loss to the incompetent’s estate. Although the resignation of the committee followed on a motion to have him removed, made pursuant to section 1384-j of the Civil Practice Act, the estate has not suffered financially by virtue of the necessity for a judicial accounting. In any event, an intermediate accounting would not have been superfluous after seven years of stewardship. However, we deem the stipulation of the committee, dated March 11, 1955, constitutes an effective waiver of any further commissions should annual accounts be thereafter not filed in time. Special Term should have enforced that stipulation to the extent of denying the balance of commissions of $486.69. Nevertheless, we believe the record amply supports an extra allowance to the committee for extraordinary services, including legal services, rendered by the committee during the period of administration of the estate as well as in the proceeding to settle the final account. The award of $400 for such services seems fair and reasonable. Tailing into consideration all of the circumstances of the case, we are of the opinion that the allowance to the special guardian was excessive and should be reduced to $250. Order is modified on the law and the facts and in the exercise of discretion to the extent of disallowing the balance of commissions in the sum of $486.69, and reducing the allowance to the special guardian to the sum of $250; and as so modified the order is affirmed, without costs. The disbursements of the special guardian for the brief filed herein shall be paid by the incompetent’s estate. Settle order.

Concur — Breitel, J. P., Rabin, Frank, Valente and Stevens, JJ.