Opinion
October 27, 1967
Appeal from a part of a decree of the Surrogate's Court of Schenectady County, entered in a proceeding for the judicial settlement of the account of a testamentary trustee; appellants contending (1) that they "were entitled to statutory costs, disbursements and reasonable counsel fees by order of the Appellate Division, Third Department, dated the 5th day of November, 1965", and (2) that the Surrogate's "allowance of $125 each to appellants' attorneys as counsel fees * * * is clearly unreasonable and an abuse of discretion on the part of the Surrogate in defiance of the order of the Appellate Division awarding 'costs to each party filing a brief, payable from the principal of the trust'". The order referred to followed our opinion and decision ( Matter of O'Brien, 24 A.D.2d 87, 90, app. dsmd. 17 N.Y.2d 611, mot. for lv. to app. den. 17 N.Y.2d 422), our decision stating simply: "Decree affirmed, with costs to each party filing a brief payable from the estate" (p. 90) and the order providing: "Ordered, that the Decree appealed from is hereby affirmed with costs to each party filing a brief, payable from the principal of the Trust". It is clear beyond dispute that our decision and order awarded "costs" only, they being, of course, the usual costs of appeal, which the Appellate Division is authorized to award to one or more parties, including unsuccessful parties. (CPLR 8107; 8 Weinstein-Korn-Miller, N Y Civ. Prac., par. 8107.04.) It follows that the contentions of the appellants' attorneys, hereinbefore outlined, and constituting the two points of their joint brief, are without any basis, depending, as each of them does, upon appellants' mistaken notion of an order of this court awarding "counsel fees". Related is the equally unfounded suggestion that the term "costs" embraces "counsel fees" and that appellants are "entitled to reasonable counsel fees * * * as part of the costs awarded by order of the Appellate Division * * * pursuant to CPLR 8303 (a) 4". The abundantly clear and long-recognized distinction between costs and counsel fees requires no discussion. Following the entry of our order, all parties were required by the Surrogate to file verified statements "to establish the amount each of them may claim to be entitled to as costs in accordance with the order of the Appellate Division" (emphasis supplied). In response, the attorneys Gavin and Murphy filed a joint affidavit claiming costs in the Appellate Division, before argument and for argument (CPLR 8203, subds. 1, 2), aggregating $150 for both attorneys, they having filed separate briefs. In addition, they claimed printing disbursements of $966.32 and other charges of $12 or a total of $978.32. The costs and disbursements therefore aggregated $1,128.32; and the payment directed by the subsequent decree was " Costs to Vernon Murphy, Esq., and Franklin P. Gavin, Esq., $1,128.32" (emphasis supplied). The Gavin-Murphy joint affidavit, in addition to this item of $1,128.32, claimed an "Additional allowance (CPLR 8303 $7,500.00)"; the total of all items, therefore being $8,628.32, as against which the Surrogate awarded $1,128.32, as above noted, thus rejecting in toto the demand for counsel fees. It becomes important to note that there can be no mistake that the disbursement item of $978.32 was exactly that and nothing else, as the attorneys repeatedly stated before the Surrogate. Now, however, the attorneys Gavin and Murphy assert in their joint brief, in contradiction of their sworn statement and without explanation, that their disbursements were but $728.32, the difference being $250; which becomes the basis for their new and startling contention that "the Surrogate awarded Mr. Gavin [and] Mr. Murphy * * * an allowance of $125 each as part of the costs in the decree appealed from" (emphasis supplied). From this, Gavin and Murphy argue that since each was given "an allowance of $125 as counsel fees", it is "now the law of this case, that these appellants are entitled to reasonable counsel fees by virtue of the order of the Appellate Division" and, thus, that the only issue is the inadequacy of the amounts allowed. The joint brief treats in similarly strange fashion the facts of the application of the attorney Farano, whose affidavit asked for $200, "as and for disbursements necessarily incurred and expended * * * together with a sum equivalent to the allowance of the Special Guardian herein". The Surrogate awarded "Costs to Dan G. Farano, Esq., $200.00"; but now, in the joint brief, we are told that Farano, like Gavin and Murphy, was awarded an "allowance of $125", and that, like them, Farano has the benefit of their "law of the case" theory. We need not dwell further on these bold manipulations of the sums clearly stated and the simple language employed in the attorneys' affidavit and in the Surrogate's decree. Assuming arguendo that the attorneys intended to and did make independent application to the Surrogate's Court (without reference to the order of this court as they construed it), although their position in that court and here is directly to the contrary, we find no basis for disturbing the Surrogate's implicit denial thereof. For no reason that appears, unless for excess of caution, appellants were brought into the pending accounting proceeding; but shortly after the adjourned return day of the citation they were dropped, upon the Surrogate's finding that they were not proper parties. As rather clearly appears from the factual statements in our affirmance ( 24 A.D.2d 87, app. dsmd. 17 N.Y.2d 611, mot. for lv. to app. den. 17 N.Y.2d 422, supra), the clear and simple language of the will and the remote degree of the appellants' relationships presented no more than an ephemeral basis, if that, for any claim of interest on their part. The factors necessary to support an allowance to one other than the fiduciary concerned are simple and well-understood and it is asserted that appellants have demonstrated none of them. Only a party is entitled and it is urged that none of the appellants is that. It may also be argued that if appellants were parties, they were properly dropped upon a determination of status and standing, without being afforded a hearing upon their objections, and before any issue of, or involving construction was tendered; and that they would not have had standing to contest that issue, had it been reached. It is urged, too, that the unnecessary citation was not effective to give them a standing as parties that they did not otherwise possess. It did, however, give them an opportunity to be heard and to demonstrate some legal interest, if they could; it did not extend to them an invitation to commence baseless litigation and to seek large counsel fees and other expenses from an estate in which they possessed no discernible interest. We need not pursue any of these questions, however, as we are satisfied that if all of them were resolved in appellants' favor, the Surrogate's reasonable and provident exercise of discretion in allowing no counsel fees to appellants would still have to be sustained, absent any showing in appellants' papers or in the record generally of the fundamental requirements that services be rendered which shall be of assistance to the Surrogate in the construction of the testamentary provision and of benefit to the trust estate. No basis for an award to appellants in any amount has been demonstrated. Decree affirmed, with costs to respondents filing briefs, payable from the trust fund. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Gibson, P.J.
The decree carefully preserves the distinction manifestly intended by the Surrogate by awarding "commissions" to the accounting trustee, "disbursements and attorney's fees" to the trustee's attorney, "compensation" to the special guardian, "costs" to the attorney Farano and "costs" to the attorneys Gavin and Murphy.