
    The Continental Bank & Trust Company of New York, as Successor Trustee under a Certain Trust Mortgage, Dated April 25, 1924, Made by Wohlbro Construction, Inc., Plaintiff, v. Wohlbro Construction, Inc., and Others, Defendants. Colonial Trust Company, as Trustee, etc., Respondent; Edward W. Murphy, an Attorney, etc., Appellant.
   In a proceeding brought by Colonial Trust Company, as trustee under a certain indenture of mortgage made by Kew Gardens Colonial Corp., dated December 30, 1936, for permission to make such application of the sums of $9,053, reserved to cover a certain assessment against the mortgaged premises, and $39.32, as the court should deem just and proper, order directing distribution of those funds, but denying the application of Edward W. Murphy, an attorney, for payment therefrom of a fee amounting to $2,263.25 for services in reducing such assessment, which was eliminated as far as property owners were concerned, modified by inserting between clause “ (e) ” and clause “ (d) ” a clause “ (e-1) ” directing payment to Edward W. Murphy, Esq., of the sum of $2,263.25 for professional services rendered to the Continental Bank & Trust Company, as trustee; by striking from clause “ (d) ” the words “ amounting to $8,610.21;” and by striking from the last decretal paragraph the name “ Edward W. Murphy, Esq.;” and, as thus modified, the order is affirmed, with ten dollars costs and disbursements to appellant, payable from the fund. In our opinion, upon the undisputed facts the appellant was entitled to be paid from the funds the amount of his agreed fee. Hagarty, Johnston and Taylor, JJ., concur; Carswell and Close, JJ., dissent and vote to reverse the order in so far as it denies the application of Edward W. Murphy to be paid $2,263.25 and to remit to Special Term for the purpose of taking proof as to the nature and extent of the services, if any, rendered by appellant.  