In re the Judicial Settlement of the Account of Proceedings of Limberg

256 A.D. 1104, 11 N.Y.S.2d 897, 1939 N.Y. App. Div. LEXIS 6299

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 1939
• Status: Published

Opinion

Cross-appeals from a decree of the Surrogate’s Court, Queens county. Decree modified by striking out the charge against the appellant-respondent of $1,035 for use and occupancy of a portion of the real property; by striking out the sum of $547.90 allowed as commissions, and substituting in place thereof the sum of $129.55; and by adjusting the totals in the decree in conformity therewith. As thus modified the decree, in so far as appeal is taken, is unanimously affirmed, with costs to the appellant-respondent and the respondent-appellant, payable out of the estate. A distributee in possession may not be charged in this proceeding for use and occupancy of a portion of the common property. The appellant-respondent is not entitled to commissions on the mortgage certificates, nor on the Liberdar and D’Avanzo mortgages, all of which are directed to be turned over to the administratrix. He is entitled to commissions on the moneys actually collected in the sum of $4,075.45, representing income from real and personal property and payments on the mortgage certificates. Commissions on said sum will be allowed as follows: on $2,000, $100; on $288.37, $7.21; on $1,787.08, $22.34; total $129.55. He will be allowed full commissions for moneys actually received and paid out as shown in the approved schedules. He will be allowed half commissions on moneys collected and turned over to the administrator by order of the surrogate. (Matter of Hurst, 111 App. Div. 460.) Present — Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ. Settle order on notice.