
    In the Matter of the Estate of Eleanor A. Queripel, Deceased.
    
    Surrogate’s Court, New York County,
    May 16, 1929.
    
      Dean, King & Smith [George M. Welch of counsel], for the executor.
    
      Frank, Weil & Strouse [Samuel F. Frank and Alexander L. Strouse of counsel], for the respondent.
    
      
      See, also, 133 Misc. 251; affd., 226 App. Div. 671.
    
   O’Brien, S.

This is a motion by the attorneys for the respondent in a discovery proceeding for an allowance for services rendered to the respondent in the proceeding in this court, and upon the appeal to the Appellate Division from a decree of this court, and also for costs and disbursements upon appeal. In their memorandum submitted in support of the motion the moving parties stated that they are satisfied that the surrogate may grant the respondent no allowance for any time devoted to the appeal. They ask, however, that she be allowed costs and disbursements under section 278 of the ¡surrogate's Court Act for services rendered in the trial or hearing in the discovery proceeding and in preparing therefor.

The question of an allowance for costs and disbursements was the subject of consideration by the court at the time of the submission of the decree to the surrogate after the rendition of his decision, and no costs and disbursements were then allowed to the respondent. The appeal to the Appellate Division from the decree of the surrogate raised no question as to the disallowance of such costs and disbursements to the respondents. The decree appealed from having been affirmed by the Appellate Division is res adjudícala as to all matters embraced therein. The motion is, therefore, denied, except that costs and disbursements on the appeal will be granted in accordance with the decision of the Appellate Division. Submit decree on notice accordingly.  