MacFarlane v. Brower

Full title: AUGUSTA L. MacFARLANE et al., Plaintiffs, v . JOHN V. BROWER et al.…

Court: Supreme Court, New York Special Term

Date published: Apr 1, 1909

63 Misc. 183 (N.Y. Sup. Ct. 1909)

116 N.Y.S. 34

Opinion

April, 1909.

William H. Good, for plaintiffs.

Mathew C. Fleming, for defendants John V. Brower and others.

Hill, Lockwood, Redfield Lydon (Robert L. Redfield, of counsel), for defendant Emma F. Baltazzi.

George N. Whittlesey, guardian ad litem for infant defendants Henry B. Manning and John L. Manning, etc.

Deyo Bauerdorf (Howard C. Taylor, of counsel), for defendant Irving Savings Bank, mortgagee.

George S. Billings, for defendants Catherine W. Lovett et al.

J.J. Karbry O'Kennedy, guardian ad litem for infant defendant Shaw Lovett.

GIEGERICH, J.

Motion to confirm referee's report of sale and for final judgment granted. Under the rule laid down in Doremus v. Crosby, 66 Hun, 125, there cannot be allowed to the parties in the aggregate more than five per cent. upon the whole value of the property sought to be partitioned. In other words, where the property brings $80,000, or more, $4,000 can be awarded in the aggregate, or $2,000 to each side. The infant defendants, Henry B. Manning, Jr., and John L. Manning, have no present interest in the proceeds of the sale, and, therefore, an allowance in addition to the taxable costs cannot be made to their guardian ad litem. Matter of Holden, 126 N.Y. 589, 596; Doremus v. Crosby, supra; Matter of Robinson, No. 2, 40 A.D. 30; Walter v. Walter, 60 Misc. 570. The latter is, therefore, entitled to taxable costs and no more out of the estate, and, as his wards have no present interest, there is nothing out of which an allowance can be made to him. An additional allowance cannot be granted to the mortgagee. Doremus v. Crosby, supra. An additional allowance, estimated upon the amount realized, above mortgages, upon the sale of the various parcels of land in suit, in conformity with the rule laid down in Doremus v. Crosby, supra, is made to each of the following parties litigant, viz.: The plaintiffs, $1,300; the twenty-one defendants who are represented by Mr. Matthew C. Fleming, $25; the defendant Baltazzi, $275; the defendants Arthur W., John E. and Clara Lovett, $50; the guardian ad litem for the defendant Shaw Lovett, $50, in addition to taxable costs. The final judgment will be settled on notice. The defendant Baltazzi ought to submit and serve a form of final judgment containing a provision of the character referred to in her counsel's brief.

Ordered accordingly.