Opinion
December 20, 1961
In an accounting proceeding by an administrator, four distributees, to wit: Tommasa Licata, Maria Rizzo, Guiseppe Rizzo and Anna Indelicata, and the Consul General of Italy at New York, as attorney in fact for the latter three distributees who are residents of Italy, appeal from an intermediate decree of the Surrogate's Court, Kings County, entered on January 17, 1961, confirming the Referee's report which, inter alia, recommended that the claim of Vincent Rizzo (the decedent's nephew and the son of the administrator, the latter having died during the pendency of this appeal) to the entire net estate be allowed and paid in full; fixing the Referee's fee for his services in this accounting proceeding; and directing the payment of such fee. Decree affirmed, with $10 costs and disbursements payable out of the estate to all parties who have appeared and filed briefs on this appeal. In our opinion, section 347 of the Civil Practice Act did not render inadmissible the testimony of claimant's father, Isidoro Rizzo, notwithstanding his relationship to the claimant and the fact that at the time he testified he was the administrator of the estate whose account was being judicially settled. He was a competent witness and his testimony was admissible because he was not a party to the contract concerning which he testified. To the extent that he participated in the formation of the contract, he acted merely as the medium or agent for both the decedent and the claimant. The contract, however, was made by the decedent with the claimant, Vincent Rizzo (otherwise known as "Jimmy"); decedent's promise was made to him; he was the direct beneficiary and contractee; and he furnished all the consideration therefor. Moreover, the father's competency was buttressed by the fact that he was testifying against his own interest, since the allowance of his son's claim would deprive him, as decedent's brother and as a distributee, of his share of the estate. The proof taken as a whole clearly presented an issue of fact as to the making of the contract between decedent and the claimant. With respect to such issue, both the learned Referee and Surrogate have found in favor of the claimant. Based on our own independent examination of the record, we have concluded that the proof amply supports such finding. We also believe that under all the circumstances the fee allowed to the Referee was fair and reasonable. Nolan, P.J., Beldock, Ughetta, Christ and Pette, JJ., concur.