In re the Judicial Settlement of Account of Proceedings of Tuttle

Appellate Division of the Supreme Court of New York

In re the Judicial Settlement of Account of Proceedings of Tuttle

255 A.D. 272, 7 N.Y.S.2d 417, 1938 N.Y. App. Div. LEXIS 4711

Appellate Division of the Supreme Court of the State of New York·Decided November 4, 1938·Published

Opinion

Per Curiam.

While the evidence may not have supported the right of appellant to recover on an actual contract with the testator for an agreed compensation, it was clearly sufficient to justify his recovery on quantum meruit for those services performed prior to testator’s death which had not been taken into consideration in the adjustments made up to January 1, 1932.

The decree, in so far as it fixes compensation for services as attorney to the estate, is correct and should be affirmed. The decree, in so far as it denies compensation for services rendered to testator to the extent indicated and denies motion for leave to file an alternative quantum meruit claim, should be reversed, and the matter remitted to the referee who heard and reported on the case, to fix the reasonable value of such services to testator, with costs to the appellant payable out of the estate.

[273]*273The appeal from the order denying motion for reargument should be dismissed.

Present — Martin, P. J., O’Malley, Glennon, Untebmyer and Callahan, JJ.

Decree, in so far as it fixes compensation for services as attorney to the estate, unanimously affirmed. In so far as it denies compensation for services rendered to testator to the extent indicated and denies motion for leave to file an alternative quantum, meruit claim, reversed and the matter remitted to the referee who heard and reported on the case, to fix the reasonable value of such services to testator, with costs to appellant payable out of the estate. Appeal from order denying motion for reargument dismissed. Settle order on notice.

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Per Curiam.

While the evidence may not have supported the right of appellant to recover on an actual contract with the testator for an agreed compensation, it was clearly sufficient to justify his recovery on quantum meruit for those services performed prior to testator’s death which had not been taken into consideration in the adjustments made up to January 1, 1932.

The decree, in so far as it fixes compensation for services as attorney to the estate, is correct and should be affirmed. The decree, in so far as it denies compensation for services rendered to testator to the extent indicated and denies motion for leave to file an alternative quantum meruit claim, should be reversed, and the matter remitted to the referee who heard and reported on the case, to fix the reasonable value of such services to testator, with costs to the appellant payable out of the estate.

[273]*273The appeal from the order denying motion for reargument should be dismissed.

Present — Martin, P. J., O’Malley, Glennon, Untebmyer and Callahan, JJ.

Decree, in so far as it fixes compensation for services as attorney to the estate, unanimously affirmed. In so far as it denies compensation for services rendered to testator to the extent indicated and denies motion for leave to file an alternative quantum, meruit claim, reversed and the matter remitted to the referee who heard and reported on the case, to fix the reasonable value of such services to testator, with costs to appellant payable out of the estate. Appeal from order denying motion for reargument dismissed. Settle order on notice.

In re the Judicial Settlement of Account of Proceedings of Tuttle, 255 A.D. 272, 7 N.Y.S.2d 417, 1938 N.Y. App. Div. LEXIS 4711 (N.Y. Ct. App. 1938).

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255 A.D. 272 (In re the Judicial Settlement of Account of Proceedings of Tuttle) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.