
    In the Matter of the Judicial Settlement of the Account of Amelia Gall, as Administratrix, etc., of Joseph Gall, Deceased. Charles F. Gall, Appellant; Amelia Gall, as Administratrix, etc., of Joseph Gall, Deceased, and American Surety Company, Respondents.
    
      Statutory commissions of an executor — they may he denied in the discretion of. the surrogate — his discretion is reviewable at the Appellate Division. .
    
    A surrogate may, in his discretion, upon the settlement of the accounts of an executor or, administrator, deny him the statutory commissions if such executor or administrator has been guilty of misconduct, notwithstanding the requirement of section 2730 of the Code óf Civil Procedure that upon the settlement of the account of an executor or administrator the surrogate must allow to him for his services the commissions fixed by law The exercise of this discretion is reviewable by the Appellate Division.
    Appeal by Charles F. Gall from so much of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate's Court on the 4th day of May, 1904, as allows commissions and costs to Amelia Gall, "as administratrix, etc., of Joseph Gall, deceased, and as directs that the said Amelia Gall, as administratrix, instead of individually, pay to the appellant the amount of his costs and disbursements.
    
      Ira Leo Bamberger [Fernando Solinger with him on the brief], for the appellant.
    
      George W. McKenzie, for the respondent Amelia Gall, as administratrix.
    
      Charles F. Brown, for the respondent American Surety Company.
   Per Curiam :

It is no longer open to doubt in this State that a surrogate may, in his discretion, upon the settlement of the accounts of an executor or administrator, deny him the statutory commissions if he has been guilty of misconduct, notwithstanding the requirement of section 2730 of "the Code of Civil Procedure that upon the settlement of the account of an executor or administrator the surrogate must allow to him for his services the commissions fixed by law. (Matter of Rutledge, 162 N. Y. 31.) The exercise of this discretion is re viewable by the Appellate Division. In the case at bar the ' administratrix has been guilty of long-continued misconduct, as has been explicitly declared not only by the Appellate Division but by the Court of Appeals. (Matter of Gall, 47 App. Div. 490 ; 182 N. Y. 270.) It is not necessary "again to rehearse the circumstances of her maladministration; but it is enough to say that we think her action has been such as ought to deprive her of all commissions and costs in this proceeding.

The decree of the Surrogate’s Court should, therefore, be reversed so far as the commissions and costs are concerned, and the amounts awarded on account of these items should be stricken therefrom, with the costs and disbursements of this appeal to the appellant.

Hirschberg, P. J., Bartlett, Jenks, Rich and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county reversed so far as the commissions and costs are concerned, and the amounts awarded on account of these items stricken therefrom, with costs and disbursements of this appeal to the appellant Charles F. Gall.  