
    (80 App. Div. 513.)
    In re O’KEEFFE.
    (Supreme Court, Appellate Division, Second Department.
    March 20, 1903.)
    1. Executors—Accounting—Costs.
    Under Code Civ. Proc. § 2561, prescribing the maximum amounts which the surrogate may allow as costs in proceedings had before him, the allowance to a special guardian of minors, on the settlement of the account of the executor, of a sum exceeding such costs, to be paid by the executor, was error.
    
      % Same—Decree—Exceptions.
    No exception is necessary to be taken to the allowance of costs made to a special guardian in a decree settling the account of an executor, since the allowance first appears in the decree.
    Appeal from Surrogate’s Court, Kings County.
    Petition by John A. O’Keeffe for a judicial settlement of his account as executor of the will of Patrick Pollard, deceased. From the decree settling the account, the petitioner appeals. Proceedings remitted, with directions.
    Argued before BARTLETT, JENICS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
    John C. Judge, for appellant.
    Thomas H. Troy, for special guardian.
   HOOKER, J.

The executor, John A. O’Keeffe, filed his petition asking1 for a judicial settlement of his accounts. His account, duly verified, was filed, and the surrogate made an order appointing Thomas H. Troy special guardian of the infants. Objections to the account were filed by the special guardian, and a reference was ordered to hear and determine the issues. Upon the trial certain items of the account were decided adversely to the executor, and later he excepted to a single item in the report, namely, the disallowance of $465, with which he claimed he should be credited.

An examination of the record discloses sufficient evidence to sustain the finding that the executor should not be credited with the item of $465, and there was no error in the referee’s report or the surrogate’s decree in that particular. There are no other exceptions in the case, and the decree of the surrogate should be affirmed, were it not for the allowance to Thomas H. Troy as special guardian of the infants. The decree contains a provision that the executor pay to the said Troy the sum of $250 thereby allowed to him as and for his reasonable costs, allowances, and compensation as special guardian in this proceeding. Matter of Robinson, 40 App. Div. 30, 57 N. Y. Supp. 523, affirmed 160 N. Y. 448, 55 N. E. 4, 160 N. Y. 692, 55 N. E. 1100, clearly defines the extent of the application of section 2561 of the Code of Civil Procedure, and under that authority the surrogate should not have made an allowance to the special guardian in excess of the amount permitted by that section. No exception was necessary in regard to that portion of the decree as it first appears therein.

The proceedings should be remitted to the Surrogate’s Court for further action in respect to the allowance to the special guardian, without costs of this appeal to either party. All concur.  