Opinion
Argued April 6, 1880
Decided April 13, 1880
E. Marshall Pavey for appellant. George P. Horne for respondents.
No objection was made, either before the surrogate or upon appeal, that the allowance made to Mr. Avery was excessive, or that the sum of all the allowances was greater than the surrogate had power to give. Neither of these questions, therefore, is before us. What the appellant does object to is that portion of the order which requires the payment of part of the sum allowed out of the share of the estate going to him as legatee. As the costs or allowances of one or all the parties, to an extent within the jurisdiction of the surrogate, may, in such a proceeding as the present, be charged upon the estate, or upon one or the other party ( Noyes v. Children's Aid Society of New York, 70 N.Y. 481), it is obvious that a sum equal to that in question (provided it was not in excess of the amount which the surrogate could allow) might have been made payable as costs therein, or the costs of some other party out of the appellant's share of the estate; but the question here is different. The payment is to be made to the appellant's own counsel, and neither the statute nor the case above cited goes so far as to allow it, but that the sum was due the counsel, and from the appellant, for services in this proceeding, is not denied. There is, then, no injustice in the result reached by the order. Moreover, upon the circumstances clearly defined by proof, we think the appellant is in no position to avail himself of the objection that the surrogate exceeded his power. The appellant must be deemed to have had notice of the original decree directing this payment, for he was not only interested in it as legatee, but as one of two executors, was active in its procurement. He not only did not object, but allowed the time for appealing from it to expire, and afterward, desiring to have re-examined another portion of the decree, he went before the surrogate with an application for this favor, which was granted upon condition that the residue of the decree, including the part now objected to, should stand. He availed himself of the permission so obtained. If it is conceded that there was a want of power in the surrogate to make the decree against the objection of the appellant, he could, nevertheless, acquiesce in it, and it cannot now be impeached on the ground that the law was mistaken by the court in rendering it, for his proper remedy was by appeal, and any injury which results to him from a failure to take it, must be imputed to his own laches, and not to the court. ( Bronson v. Ward, 3 Paige, 189; Stone v. Morgan, 10 id. 615; Phyfe v. Eimer, 45 N.Y. 102.) Here there was not only laches, but consent. Nor has any injury happened to the appellant therefrom. In yielding to it, he only discharges an obligation, which, for aught that appears, is just, out of a specific fund, instead of his general assets.
The order should be affirmed with costs.
All concur.
Order affirmed.