Opinion
Submitted September 30, 1924
Decided October 14, 1924
Appeal from the Supreme Court, Appellate Division, First Department.
Arthur F. Driscoll and Joseph Walker Magrauth for appellant.
Francis B. Chedsey for respondent.
"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 concerned in the determination of the question of the allowance and amount of counsel fee 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.)
Respondents were under no duty to protect the rights of the incompetent or the other beneficiaries under the will by taking an appeal from the order of the Special Term to the Appellate Division. ( Isham v. N.Y. Association for the Poor, 177 N.Y. 218, 222.)
The order should be reversed, with costs, and appeal from order of the Special Term to the Appellate Division dismissed, with costs.
HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur; CARDOZO and LEHMAN, JJ., dissent.
Order reversed, etc.