In re the Estate of Marx , 4 Misc. 2d 785 ( 1956 )

George Frankenthaler, S.

This application for authority to compromise an action for wrongful death and personal injury is granted. The special guardian disputes only the proposed allocation of the proceeds of the settlement between the two causes of action and his objection turns on his contention that medical and funeral expenses are not deductible from the portion allocated to the death action. Such expenses constitute proper elements of damage in death and injury actions (Decedent Estate Law, §§ 120, 132, 133) and where, as in the instant case, the parties to the compromise clearly regarded these expenses as included therein the sum allocated to the death action is not exempt from liability for them (Decedent Estate Law, § 133). These expenses exceed the total amount of the recovery through the compromise here authorized and as the court holds that they may be set off against the portions allocated to both actions the entire sum will be consumed. Consequently the objection to the apportionment becomes futile and is overruled. To the extent indicated in the account the administrator may- reimburse himself for payment of funeral and medical bills. The compensation of the administrator’s attorney is allowed in the amount requested and the special guardian’s fee has been fixed.

Submit decree on notice accordingly.