In re Hart

• Decision Date: 14 October 1924
• Citation: 239 N.Y. 511,147 N.E. 174
• Parties: In re HART.
• Court: New York Court of Appeals Court of Appeals

239 N.Y. 511

147 N.E. 174

In re HART.

Court of Appeals of New York.

Oct. 14, 1924.

In the matter of the accounting of James Hart, as committee of the person and property of Annie Huggins, an incompetent person. From an order of the Appellate Division (208 App. Div. 844, 204 N. Y. S. 914), modifying and affirming as modified an order of the Special Term, granting the committee an allowance for legal services, trustees under the will of the incompetent's deceased husband appeal.

Reversed, and appeal from order of Special Term dismissed.

Cardozo and Lehman, jj., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Arthur F. Driscoll and Joseph Walker Magrauth, both of New York City, for appellants.

Francis B. Chedsey, of New York City, for respondent.

PER CURIAM.

‘A party aggrieved may appeal in a case provided by law.’ Civil Practice Act, § 557. The trustees under the will of the incompetent's deceased husband had no legal interest sufficient to authorize an appeal from the order herein when those directly concernedin the determination of the question of the allowance and amount of counsel fees had been given notice of the filing of the account of the committee and of an application for the judicial settlement thereof. An incident to such application would be the allowance of counsel fees. Matter of Maxwell, 218 N. Y. 88, 112 N. E. 575.

Respondents were under no duty to protect the rights of the incompetent or the other beneficiaries under the will by taking and appeal from order of the Special Term to the Appellate Division. Isham v. New York Ass'n for Improving the Condition of the Poor, 177 N. Y. 218, 222,69 N. E. 367.

The order should be reversed, with costs, and appeal from order of the Special Term to the Appellate Division dismissed, with costs.

HISCOCK, C. J., and POUND, McLAUGHLIN, CRANE, and ANDREWS, JJ., concur.

CARDOZO and LEHMAN, JJ., dissent.

Order reversed, etc.