
    (72 App. Div. 211.)
    In re BAKER.
    (Supreme Court, Appellate Division, Third Department.
    May 7, 1902.)
    .1. Administrators—Commissions—Culpable Negligence.
    The failure of an administratrix to bring an action to obtain possession of a note, which, during the lifetime of the intestate, passed into the hands of the maker, is not such culpable negligence as will deprive her of the commissions provided by law, especially where she is charged with the principal and interest of such note.
    2. Same—Accounting—Credits.
    A payment by the maker of a note to a third person, made at the request of the holder, is a payment on the note, entitling the holder’s administratrix to a credit therefor, together with interest thereon.
    Appeal from surrogate’s court, Washington county.
    In the matter of the settlement of the final accounts of Frances Baker as administratrix of the estate of Elizabeth Wilbur, deceased. From a decree of the surrogate, the administratrix appeals.
    Modified.
    See 57 N. Y. Supp. 398; 59 N. Y. Supp. 121.
    Argued before PARKER, P. J., and KELLOGG, SMITH, •CHASE, and FURSMAN, JJ.
    Van Ness & Curry (C. H. Sturgess, of counsel), for appellant.
    James C. Rogers, for contestants.
   PER CURIAM.

We think the learned surrogate erred in adjudging that the administratrix was not entitled to the commissions allowed by law. The record does not disclose such gross negligence or ■unfaithfulness in the discharge of duties as to warrant punishment of this character. The negligence charged relates to her failure to obtain possession of a note which had passed from the possession of the deceased in her lifetime into the hands of the maker of the note.. This question of how to proceed under the circumstances, or whether to involve the estate in litigation over the matter at all, was not so clear as to make it gross, culpable negligence not to bring an action. The-surrogate has charged her with the principal and interest of this note, and the estate has lost nothing by reason of her hesitancy in entering; upon litigation. The estate has been so saved thp peril of such an. action, and all question as to the responsibility of the maker of the note. Under such circumstances we can see at most only a mistake in. judgment on the part of the administratrix. She should be allowed the usual commissions.

The surrogate also omitted to credit as paid on the note $65, which, the maker of the note paid to Miss Button. There is no dispute about this payment. This was made apparently at the request of the deceased, and should be allowed as a payment on the note, and the amount charged to the administratrix on account of this note should be-reduced by that sum and interest from the date of death of the intestate.

The decree is modified by the allowance of commissions and the said payment of $65 and interest, and, as so modified, affirmed, with costs to appellant from the estate. The surrogate of Washington county is directed to so modify the decree of record in the surrogate’s court,, and, after allowance of costs of the appeal, the commissions, and said payment, to reapportion the amount to be distributed in conformity with such modification.  