Bailey v. Buffalo Loan, Trust & Safe Deposit Co.

• Decision Date: 26 March 1915
• Citation: 108 N.E. 561,214 N.Y. 689
• Court: New York Court of Appeals Court of Appeals
• Parties: BAILEY v. BUFFALO LOAN, TRUST & SAFE DEPOSIT CO. et al.

214 N.Y. 689

108 N.E. 561

BAILEY

v.BUFFALO LOAN, TRUST & SAFE DEPOSIT CO. et al.

Court of Appeals of New York.

March 26, 1915.

Action by Harlow W. Bailey against the Buffalo Loan, Trust & Safe Deposit Company and others. Motion by the Buffalo Loan, Trust & Safe Deposit Company for an order amending the remittitur herein by supplementing the same with a statement that said remittitur may make it definite and certain that the trial court, upon the accounting provided for in the decision of this case, as set forth in the opinion handed down therein, shall not be precluded from hearing, considering, and passing upon any application of the trustee for an allowance out of the trust fund for its reasonable and necessary expenses incurred in administering the trust estate. Denied.

See 213 N. Y. 525, 107 N. E. 1043.

TRUSTS k313-REIMBURSEMENT OF TRUSTEE-ALLOWANCE OF COSTS.

Where defendant, trustee for several beneficiaries, when a controversy arose between the parties as to the validity of the trust, chose to join in the litigation adversely to the plaintiff, denying his right as residuary legatee to question the validity of the trust, final judgment being for the plaintiff, an award to defendant of costs and expenses of suit was not justified, since the practice of making such allowances from trust funds should be limited, rather than extended.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. s 432; Dec . Dig. k313.]Messer & Groat, of Buffalo, for the motion.

Aaron Fybush and F. C. Ferguson, both of Buffalo (for plaintiff), and H. B. Van Peyma, of Buffalo (guardian ad litem for infant defendants), opposed.

PER CURIAM.

It appears from the papers submitted on this motion that the Buffalo Loan, Trust & Safe Deposit Company seeks to be allowed the sum of $1,210 granted by the judgment of the Special Term, which judgment has been reversed by this court. The effect of the reversal requires the trust company to account for that item; second, an item of $384.55 paid to the guardian ad litem; together with $2.42 for remittitur, which is conceded by the plaintiff to be a proper allowance; third, $1,317.44 for defendant's disbursements and counsel fees in this action.

The facts in this case are fully set forth in the opinion of this court (Bailey v. Buffalo Loan, Trust & Safe Deposit Company, 213 N. Y. 525, 107 N. E. 1043); and so far as the question presented by this motion is concerned Bailey, the plaintiff, was decreed to be entitled to the avails of the trust fund now in the hands of the defendant, Buffalo Loan, Trust & Safe Deposit Company, together with any accumulations thereunder from July 1, 1911, after deduction of legal commissions to which the trust company is entitled in the disposition of said fund.

The record on appeal disclosed that the trust company had acted as trustee at least from January 29, 1899; that it had taken commissions semiannually on income paid by it as trustee. The opposing affidavits here disclose that the trustee has...