
    (71 Misc. Rep. 403.)
    In re GREENE.
    (Oneida County Court.
    March, 1911.)
    1. Insane Persons (§ 42)—Accounting by Committee. ■
    Under Code Civ. Proc. § 2342, providing for the accounting of the committee of an incompetent, the court has authority to disallow improper items.
    [Ed. Note.—For other cases, see Insane Persons, Cent. Dig. §§ 64-07; Dec. Dig. § 42.]
    2. Insane Persons (§ 42)—Accounting by Committee.
    A committee of an incompetent cannot be allowed expenses of visits to the incompetent purely friendly, and not necessary for the administration of the estate.
    [Ed. Note.—For other cases, see Insane Persons, Cent. Dig. §§ 64-07; Dec. Dig. § 42.]
    3. Insane Persons (§ 42)—Accounting by Committee.
    Committee of insane persons cannot charge as an expense for the use of his own team when on business relating to the estate.
    [Ed. Note.—For other cases, see Insane Persons, Cent. Dig. §§ 64-67; Dec. Dig. § 42.]
    4. Insane Persons (§ 42)—Accounting by Committee.
    The committee of an incompetent may deduct in his annual account commissions on moneys received and paid out, but should not be allowed half commissions on money received and not disbursed.
    [Ed. Note.—For other cases, see Insane Persons, Cent. Dig. §§ 64-67; Dec. Dig. § 42.]
    Proceedings on the filing of the annual account of James B. Greene, committee of Maria O’Leary, an incompetent. Committee surcharged and account proved.
    P. H. Fitzgerald, for committee.
    F. J. Sisson, examiner of committee’s accounts.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   HAZARD, J.

This is a proceeding under section 2342 of the Code of Civil Procedure. The committee has filed an account and supplemental account of his transactions for the year 1910, and certain objections thereto have been made by the official examiner, and a hearing had on the voluntary appearance of the accounting party at which he was sworn and examined with reference thereto.

The exact scope of section 2342 in cases like this is not entirely clear; that section providing that;

“The county judge * * * must examine, or cause to be examined under his direction, all accounts and inventories filed by committees of the person and property, since the first day of February of the preceding year.”

Unless the county judge exercises some control and authority over objectionable items appearing in such accounts, the provision above quoted would seem an idle one, and I therefore assume that it is the intention of the law that some supervision at least should be exercised. As to the finality of the decision which is about to be made, or, to put it another way, as to whether the committee might not include the items here disallowed in his final accounting and then secure a final adjudication upon them, I do not here attempt to decide. It seems, however, clear to me that some of the items included in the accounts before me are improper ones, and that I should therefore disallow them.

The committee makes a charge of a total of 11 visits from his home in Florence in this county to Utica State Hospital, where the incompetent person is confined, charging $5 expenses for each. visit, a total of $55. Upon his examination he admitted frankly that the visits were purely social or friendly, and were not necessary for the administration of the estate. It seems to me, therefore, that they cannot be charged against the estate, and I therefore disallow those items.

The account contains items of six trips from Florence to Utica to consult with Mr. Fitzgerald, the committee’s attorney. On one of these occasions it appears that it was necessary for the committee to make a deposition in reference to some claims made on behalf of this estate, and that item is therefore clearly allowable. As to the other five, I am not so clear. It would appear that most of the business with the attorney might have been done by correspondence. However, the committee testifies that he made all of the visits to see Mr. Fitzgerald about the business of the estate, and that in his judgment it was important, if not necessary, that he should do so, and I therefore feel disinclined to disallow the items.

He has charged $5 for expenses on each item, except one for which he charged $10, being an occasion when he stayed in Utica over night; and it appears from his examination that one of the items of expense was $2 charged for livery on each occasion. It also appears that the committee has a team of his own, and that on all but two occasions "he used his own team. Upon the authority of Pullman v. Willetts, 4 Dem. Sur. 536, this charge must be disallowed, viz., a total of $8.

The committee has also in his account taken out full commissions, both for receiving and disbursing the entire amount of money which has come into his hands. It appears that he was appointed in February, 1901, and that he has received money from several sources, and has disbursed considerable, but not all of it. In a case like this, where the entire corpus of the estate is likely to be consumed, I think it is allowable for the committee upon his annual accounting to deduct commissions upon what he has actually received and paid out, but he certainly cannot deduct commissions for both receiving and paying out upon what he still has in his hands. Neither do I think the practice which obtains in some quarters of committees taking out one-half commissions for receiving the estate is a matter of good practice.

The account of this committee must be surcharged by adding the items of $55 and $8. It must be further corrected by putting back into the fund the item of $74.58 commissions on the whole sum; but, after doing that, the committee may deduct from the balance which will then be shown, his commissions as fixed by law upon so much of the estate as he has both received and paid out.

Ordered accordingly.  