Opinion
March 15, 1960
Donald T. Mullane for Joseph Van Gelder, petitioner.
Bernard Newman for Chemical Corn Exchange Bank, as trustee, respondent.
Leonard J. Reich for John J. Fields III, as trustee, respondent.
The petitioner in this proceeding, a certified shorthand reporter, seeks to compel the trustee to pay his claim for stenographic services rendered to the estate in connection with the proceeding to settle the trustees' account now pending before this court.
There is no merit to the arguments set forth by the trustees in opposition to the application and the cases cited by the trustees in support of their position are not applicable to the case at bar. This is not an application for the payment of costs and the petitioner herein is neither a party to the proceeding nor is he interested in its outcome. Although the said petitioner is an official stenographer of the court, he was hired in this instance in his individual and private capacity by the Referee, and employees of the petitioner, persons holding no official positions, were used to report the hearings held before the Referee. The petitioner is, therefore, not bound by the provisions of section 30 of the Surrogate's Court Act with respect to his charges.
However, the question has been raised that there is a deficiency of parties to this proceeding in that the remaindermen have not been made parties to it. The said remaindermen's interests may be affected by this payment and a direction by this court that the petitioner's claim be paid would not be binding upon the said remaindermen and would subject the trustees to a review of the propriety of such payment when their final accounting is submitted for settlement.
As this proceeding has been pending for almost four years, the court of its own motion, pursuant to the provisions of section 256 of the Surrogate's Court Act, directs the trustees to file a supplemental account of their proceeding as trustees to date, within 30 days from the date of the order to be entered hereon, listing therein the petitioner's claim as a rejected administration claim. The filing of the supplemental account will give the said trustees who have raised the question of the deficiency of parties an opportunity to bring all interested parties before the court.
Submit order on notice or consent accordingly.