In re Lippincott

5 Dem. Sur. 299

• Court: New York Surrogate's Court
• Decided: November 15, 1886
• Status: Published

Opinion

The Surrogate.

A decree judicially settling the account of John D. Fish, as administrator, c. t. a., of this decedent’s estate, and adjudging that he had in his hands as such administrator the sum of $1,223.98 was entered on the 14th day of August, 1885. This decree directed the retention by the accounting party of $507.61 as commissions, and allowed him, as costs and counsel fees on his accounting, the sum of $295. It directed the distribution of the balance among certain specified legatees. Upon the motion of S. T. Lippincott, who claimed to be interested in the estate, this decree was set aside by an order entered on September 18th, 1885, by which order $10 costs were allowed in favor of the moving party, against the administrator. On October 8th, 1885, an order was entered whereby a referee was appointed to pass upon the account. The administrator subsequently moved to strike out the objections of S. T. Lippincott. His motion was denied on March 18th, 1886, with $10 costs.

On the same day, the order of reference was so amended as to provide that if, in the opinion of the referee, it should be practicable so to do, he should in the first instance ascertain whether the objector, Lippincott, had any interest in the estate. On June 3d, 1886, leave was granted to issue execution for the costs above referred to, and the order granting such leave allowed the applicant $10, costs in addition. Thereupon an execution issued, which was subsequently returned unsatisfied. An application is now made in behalf of S. T. Lippincott to punish the administrator and his counsel for contempt in wrongfully paying out the funds of the estate, “ under the provisions of a decree which had been obtained by a fraud upon the court and has subsequently been set aside,” and for the interposition of “ his own wrong as an excuse for not paying the costs,” etc.

In opposition to this application, the administrator has filed an affidavit denying any misconduct in procuring the entry of the decree, and alleging that while it was in full force and effect he distributed the balance in his hands pursuant to its directions. No application has been made for the restoration of any of the moneys so paid out," and no steps have been taken to contest the account before the referee, though more than a year has elapsed since the reference was ordered. The conduct of the administrator and his counsel in connection with the entry of the decree seems to be again pressed upon my attention merely as a make-weight to the application to punish the administrator for contempt in neglecting to pay the $30 costs. The manner of collecting motion costs in this court is declared by § 2556 of the Code of Civil Procedure to be the same as collecting costs upon an order in a Supreme court action. The reference is to § 779, which provides that the collection of costs upon an order may be enforced by execution.

This proceeding must be dismissed, without costs to either party.