In re Proving the Last Will & Testament of Schroeder

245 A.D. 762

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1935
• Status: Published

Opinion

Order of the Surrogate’s Court, Queens county, dated February 5, 1935, in so far as it denies appellant’s motion for leave to renew his application for a rehearing, on new papers, of respondents’ application for counsel fees, reversed on the law, with ten dollars costs and disbursements to be paid by respondents, and motion granted, without costs. The motion, in effect, was an application to open appellant’s default and to vacate the order of October 25, 1934, fixing respondents’ fee. The default, under the circumstances disclosed by this record, was excusable and in the interest of substantial justice the motion should have been granted. Upon appellant’s default, the court awarded respondents $1,800 for services rendered in probating the will, and this sum has been paid. In view of the character and size of the estate and the fact that the objections to the probate were withdrawn during the trial, we believe an allowance of $1,000 would be adequate compensation to respondents. Therefore, an order should be entered vacating the order of October 25, 1934, fixing respondents’ compensation at $1,000 and directing them to return the sum of $800. The appeal from the first order of January 14, 1935, is dismissed. Lazansky, P. J., Young, Carswell, Davis and Johnston, JJ., concur.