Opinion
Submitted November 20, 1950
Decided November 30, 1950
John B. Doyle for motion. Henry L. Ughetta, II, for New York Trust Company, in opposition to motion.
George W. Martin for Home for Incurables, in opposition to motion.
In this proceeding to settle its accounts as trustee, the New York Trust Company filed a claim for legal services which it incurred in a successful defense of an action brought against it individually by income beneficiaries. The Surrogate refused to allow that claim.
The trust company thereupon appealed to the Appellate Division from so much of the decree of the Surrogate's Court as sustained the objections to the payment of the claim of the trustee. The Appellate Division reversed on the facts and law by an order which reads in part as follows: "ORDERED and ADJUDGED that the decree so far as appealed from be and the same hereby is reversed, on the facts and on the law, and that the objections filed by the respondents to the payment by said trustee of said sum of $7,868.70, be and the same hereby are overruled, except that said sum shall be made a charge against the income of the said trust and not against the principal thereof, with costs to the appellant and to the respondents, Foundation for the Investigation of Chronic Pulmonary Diseases, Inc., The Trustees of Columbia University in the City of New York, Memorial Hospital for the Treatment of Cancer and Allied Diseases, and Home for Incurables, payable out of the principal of the trust fund."
The order was entered on July 7, 1950, and was served upon counsel for the appellants on July 10, 1950. On October 3, 1950, the Surrogate entered his decree upon the order of the Appellate Division.
The appellants (the income beneficiaries) served upon the respondents a notice of direct appeal from the order and decree of the Surrogate. This notice of appeal was served upon each of the respondents on October 30, 1950. On October 31, 1950, the corporate respondents and the Trustees of Columbia University returned the copies of the notice of appeal upon the ground that the notice of appeal was not served in time and that appeal to this court did not lie from the order and decree of the Surrogate's Court.
Thereupon the present motion was made to compel acceptance of service of the notice of appeal. The position of the respondents is that the appealable paper in this case was the order of the Appellate Division. In that view, the respondents are right for the order of the Appellate Division contemplated no further judicial action and so was a final order appealable to this court as of right (Civ. Prac. Act, § 591; Matter of Westberg, 279 N.Y. 316). If, however, the order of the Appellate Division had contained a direction remitting the case to the Surrogate's Court for entry of a decree, such decree would have been the appealable paper (cf. Matter of Ewald, 292 N.Y. 512; Matter of Carpenter, 296 N.Y. 743; Matter of Lawrence, 297 N.Y. 596).
The motion to compel acceptance of notice of appeal should be denied, with $10 costs.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur.
Motion denied.