Opinion
December 29, 1943.
Appeal from Surrogate's Court, Westchester County.
Present — Close, P.J., Hagarty, Carswell and Adel, JJ.; Taylor, J., not voting.
Decree and order, insofar as appealed from, unanimously affirmed, with one bill of costs to respondent Harold D. Toomey, as special guardian for Muriel Joan Campbell, payable by the trustee and not out of the estate. The Surrogate's holding that the appellant was negligent in its conduct as trustee was proper. The appellant's contentions to the contrary are unimpressive. In determining the values of the mortgaged properties, the Surrogate was not bound by the opinion evidence of any of the experts who testified, but was entitled to form an independent judgment upon the factual evidence relating to the properties. ( Roberts v. N.Y.E.R.R. Co., 128 N.Y. 455, 464, 465; Kelly v. Wills, 116 App. Div. 758, 761; Harley v. Buffalo Car Mfg. Co., 142 N.Y. 31, 37; Brooklyn Heights R.R. Co. v. Brooklyn City R.R. Co., 124 App. Div. 896, 901, 902.) The decision of the Surrogate as to values is adequate and finds abundant support in the evidence, and he was not required to make further findings on the application of the trustee. (Surrogate's Ct. Act, § 71.)