In re the Accounting of Lazar

24 A.D.2d 93, 263 N.Y.S.2d 958, 1965 N.Y. App. Div. LEXIS 3071

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1965
• Status: Published

Opinions

Per Curiam.

Upon settlement of the final account of the committee of the person and property of an incompetent, hospitalized veteran, the committee, an attorney, has been awarded $450 for legal services, and compensation of $350 has been granted 'the guardian ad litem. Appellant, the Administrator of Veterans’ Affairs, contends that the former of these allowances should be eliminated and the latter reduced. We agree.

The committee was substituted for a prior committee on January 24, 1957. His petition shows receipts of $7,698.36, including $3,945.22 received from his predecessor, disbursements of $5,991.77, and a balance on hand of $1,706.59, As all the receipts consisted of pension payments by the United States Veterans’ Administration and of income derived from such payments, the committee’s compensation is regulated by subdivision 1 of section 115-j of the Mental Hygiene Law. That subdivision, after providing that the compensation ‘1 for administering the estate of a ward shall be fixed by the court not to exceed five per centum of the income of the ward during any year ”, goes on to say: “ In the event of extraordinary services rendered by such guardian [i.e., the committee] the court may, upon petition and after hearing thereon, authorize additional compensation therefor, payable from the estate of the ward.”

It is not questioned that the committee herein performed legal services which might justify reward if other statutes relating to committee compensation were applicable (see Mental Hygiene Law, §§ 109, 115-j, subd. 2; Surrogate’s Ct. Act, § 285). But ■as Matter of Erlandsen (265 N. Y. 155) makes plain, such other statutes, in the respect here concerned, have by virtue of section 115-a of the Mental Hygiene Law

* been superseded by the provisions of subdivision 1 of section 115-j; and where, as here, those provisions apply, added compensation for legal services is warranted “ only when such services are found to be extraordinary ”, or, as it was also put by the Court of Appeals, “uncommon in character” (p. 157). (See, also, Matter of Richter, 282 App. Div. 103.)

The committee in Matter of Erlandsen described his services as ‘ ‘ the investment of funds, correspondence, annual inventories, attendance at hearings before a referee, and the preparafcion of the account ” (p. 157). “ All this,” concluded the Court of Appeals, although ‘ ‘ in part the work of a lawyer, ’ ’ was ‘ ‘ no more than the usual routine of administration of any estate ” (id). Comparison of the affidavit of services in Matter of Erlandsen with that in the matter at bar inevitably leads to the same conclusion here.

After reviewing the services of -the guardian ad litem, and attentive to the caution that “ the estates of incompetent veterans who are wards of the court should be carefully and conservatively supervised and administered ” (Matter of Simpkins [Hines], 267 App. Div. 440, 441; Matter of Harnisch, 20 A D 2d 915), we are of opinion that a substantial reduction of the guardian’s allowance is called for.

Accordingly, the order entered on March 12, 1965 should be modified, on the law and the facts, by striking the allowance to the committee and reducing to $75 the allowance to the guardian ad litem, and, as so modified, should, to the extent appealed from, be affirmed, without costs and without disbursements.

“ § 115-a. Application. Whenever, pursuant to any law of the United States or regulation of the administration, the director requires, prior to payment of benefits, that a guardian be appointed for a ward, such appointment shall be made in the manner hereinafter provided. The provisions of this article shall apply only to the wards of the administration and with respect to such wards, except as herein otherwise specifically provided, shall supersede any inconsistent provision of law relating to incompetents or infants.”