
    In the Matter of the Accounting by Ada May Snedeker, as Administratrix, etc., of Charles Snedeker, Deceased, Respondent. Thomas H. Snedeker, Appellant.
    
      Action by an administrator to recover for the death of his intestate—attorneys? fees, etc., are chargeable against the recovery—fee of $1,000 paid to a physician—a finding of fact supplied on appeal by the Appellate Division.
    
    Under section 1903 of the Code of Civil Procedure, relating to the distribution of the damages recovered by ah administrator in an action brought to recover the damages resulting from the death of his intestate, which provides that the administrator may deduct from such damages “the expenses of the action,” the administrator is entitled to be credited with attorneys’ fees, disbursements and witness’ fees, together with reasonable compensation for expert witnesses, where they are required, as well as with payment for all other work, labor and services of whatever nature they may be, so long as they are incurred in good faith, under a reasonable supposition that the chances of success in the lawsuit will be enhanced by their employment.
    When the administrator is entitled to be credited with the sum of $1,000 paid to a physician who rendered valuable services to the administrator in the preparation for, arid upon, the trial of the action, considered.
    Upon an appeal from a decree of the Surrogate’s Court entered upon the report of a referee, the Appellate Division may, under sections 993 and 2586 of the Code of Civil Procedure, supply an essential finding of fact which was omitted from the referee’s report and from t*ke surrogate’s decree.
    Appeal by Thomas H. Snedeker from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 11th day of February, 1902, confirming the report of a referee theretofore appointed in the proceeding, and settling the accounts of the administratrix, of Charles Snedeker, deceased.
    
      A. T. Payne, for the appellant.
    
      Charles M. Stafford, for the respondent.
   Hooker, J.:

The respondent is the administratrix of the estate and the widow of Charles Snedeker, deceased. Six months before his death he met with an accident which he claimed was due to the negligence of one Malcom, by reason of which he was thrown violently • from his bicycle in the public street. At that time he was confined to his house but a few days, and the result of the mishap did not appear to any one to be serious.. At the expiration of five months and a half he was taken. to his bed, and after an illness of two weeks died. Dr. John L. Macumber was in attendance upon him in his last illness, and the incident of the accident having been related to him,- he suggested to the widow that were an autopsy performed, and medical and microscopic examinations had, it might be demonstrated that Snedeker died as a result of the injuries he sustained six months before. Snedeker’s death abated an action he had brought against Malcom for the injuries sustained, and the respondent directed Dr.'Macumber to proceed in such manner as he thought proper to effect a determination of the medical questions involved, and signified to him that she would procure her appointment as administratrix and bring an action against Malcom to recover damages for her husband’s death; and then made an agreement with Dr. Macumber in relation to his compensation which all the parties hereto concede to have been void as against public policy.

After two trials judgment was obtained against the defendant in the suit of the administratrix for damages in the sum of $5,771.95. The deceased having left no children it appears that the administratrix supposed that under the provisions of sections 1902 and 1903 of the Code of Civil Procedure she was entitled, as the widow, to the entire proceeds of the litigation. After the recovery and the payment of the verdict, however, the father of the deceased, who was the nearest next of kin, called her to an accounting before the surrogate, and the Court of Appeals, upon a review of the surrogate’s decree, determined that the father should share equally with the widow where other next of kin had failed. (Matter of Snedeker v. Snedeker, 164 N. Y. 58.) Thereafter the judgment of the Court of Appeals was made that of the Surrogate’s Court, and the administratrix filed her accounting, to which the father, who has appealed to this court from the decree of the surrogate, filed objections ; the account was referred and evidence taken before the referee. The decree of the surrogate, entered upon the coming in of the report confirming the same, is now under review.

By the stipulation of the parties in writing incorporated with the printed papers, it is agreed that “ upon the appeal herein, the only question presented for adjudication is the following: ‘The item and charge of $1,000 allowed to Dr. John L. Macumber,’ which the petitioner has and does object, to. In other words the appellant objects to that part of the decree, herein which credits the respondent with the payment to Dr. John L. Macumber of $1,000. All other objections are withdrawn.” Upon the report of the referee the surrogate disallowed certain items in the account and allowed certain others. Among the latter was the one of $1,000 paid to Dr. John L. Macumber as compensation for work, labor and services he had performed in connection with the litigation.

Section 1903 of the Code of Civil Procedure reads as follows: “The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent’s husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action and his commissions upon the residue, which must be allowed by the surrogate upon notice, given in such a manner and to such persons as the surrogate deems proper.” It is under the authority of the language of the last sentence of this section that the administratrix claims the decree of the surrogate should be affirmed, allowing her to credit herself upon the accounting with this item of $1,000 as part of the expenses of the action. Argument is hardly necessary to establish the principle that a representative of an estate, who maintains such an action, should be credited with attorneys’ fees, disbursements and witness’ fees, together with reasonable compensation for expert witnesses, where they. are required, as well as with payment for all other work, labor and services of whatever nature they may be, so long as they are incurred in good faith, under a reasonable supposition that the chances of success in the lawsuit would be enhanced by their employment. Without a reasonable interpretation of this rule, representatives of estates would run personal risk of becoming chargeable with expenses which they-in many instances properly deemed necessary to.be rendered in accomplishing a successful determination of the litigation,' and were such risks apparent it might easily lead to the imperfect preparation and trial of such cases and an incomplete protection .of the rights of the next of kin, who would be entitled,, under section 1903 of.the Code of Civil Procedure, to share in the proceeds.

In the case under review Dr. Macumber rendered extremely valuable medical, services to the administratrix; it appears undisputed from the evidence that, without services, of this nature being' rendered by some one, the action must have failed. The doctor, undisputed, testified on the hearing before the referee as follows: “ I worked the case up; studied .it up; talked with Dr. Evans and he came up' to see if there was anything in the heart or lungs to produce this condition in the brain. And after he was dead Professor Van Cott came into the case, and he made the autopsy and because Dr. Little attended him in his first sickness I requested him to be there and I was there. There were diseased spots in his brain, and it was impossible to determine whether liis death resulted from an injury which occurred six months before, and which permitted him to go about his business until a short time before liis death. Professor Van Cott took sections of the brain and different parts of the body,, the heart, lungs and all the vital organs and took them to the laboratory, hardened them and prepared them for work with the microscope and after several mpnths he reported to me that the findings in the brain were sufficient to connect the death with the accident; that there were evidences of a hemorrhage having taken place in the brain, .one on either side of the brain and had found the blood changes and he could definitely state that at a time before his death he had hemorrhages that could not be determined with the naked eye; it had to be determined with the microscope.” In answer to a question as to the fair and reasonable value of the services he had performed in that case he testified that the charge was very reasonable indeed, because it was a case that stretched over a long period of time, and added: “ it was a case in which the medical testimony decided the matter and there were other medical experts on the other side, they said it was not so and it devolved on me to say that it was so. I was working on it a good deal of the time over a year, and I lost a good .deal of time going to court. We not only had to prove-these things, but we had to disprove the testimony of the others. The family physician came in and stated what his health was. He said he had operated on him for appendicitis some time before. The autopsy showed that he had never had anything the matter with his appendix. He stated in court that the appendix was so diseased that they could not be removed. We had to bring up all these things to discount the medical testimony of the other side.” There is evidence in the record that the value of Dr. Macumber’s services was $1,000, and nowhere did the appellant before the referee urge that the charge was excessive or exorbitant, or offer any testimony to dispute the evidence of value.

There.is no finding of the referee or the surrogate that these services were of the value ascribed to them. The decree allowing that sum to the administratrix should nevertheless be affirmed. Section 993 of the Code of Civil Procedure authorizes the Appellate Division to pass upon a-question of fact where that is necessary. That section provides in part as follows: The Appellate Division of the Supreme Court shall, on appeal from a judgment entered on the report of a referee, or the decision of a court on such trial, review all questions of fact and of l&w, and may either modify or affirm the judgment or order appealed from, award a new trial, or grant to either party the judgment which the facts warrant.” We are of the opinion that it should be taken as a fact iii this case that the services rendered were of the value indicated. Section 2586 of the Code of Civil Procedure, relating to appeals from the Surrogates’ Courts, provides : “ Where an appeal is taken upon the facts the appellate court has the same power to decide the questions of fact, which the surrogate had; and it may, in its discretion, receive further testimony or documentary evidence, and appoint a referee.” Under the authority of the last two sections we have-quoted, it can hardly be doubted that we have the power to supply any finding of fact omitted from the referee’s report or decision and the surrogate’s decree, essential to the case.

The view we take of the dispute renders it unnecessary to pass upon the legal questions discussed by the. referee upon which he sought to uphold the claim of the administratrix to the $1,000, which he finds had already been paid to Dr. Macumber.

The decree should, therefore, be affirmed.

All concurred.

Decree of. the Surrogate’s Court of Kings county affirmed, with costs.'  