
    Edwin M. Johnston, Respondent, v. Henry P. Johnston, Appellant, Impleaded with Alice May Johnston and Others, Defendants.
    Second Department,
    December 18, 1914.
    Partition — distribution of proceeds of sale—when deposit of money into court not necessary — costs — allowance under section 3252 of the Code of Civil Procedure.
    Where, in an action for partition, administrators of an estate are made defendants, and the interlocutory judgment does not provide that the sale shall “ be free from the lien of every debt of such decedent,” and a final accounting of the estate has been had before the surrogate, the court may distribute the proceeds of the sale without depositing the same in court, although the sale was made within three years after the granting of letters of administration.
    Although the total allowance given by the court in an action for partition cannot exceed five per cent upon the value of the property involved, this does not include the statutory allowance under section 3252 of the Code of Civil Procedure, which follows a recovery “ as a matter of course. ”
    Appeal by the defendant, Henry P. Johnston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 22d day of December, 1913, upon the report of a referee.
    
      John J. Donnelly, for the appellant.
    
      George Worrall [Edward E. Perkins with him on the brief], for the respondent.
   Per Curiam:

In this partition suit the court gave leave to issue a supplemental summons which brought in as defendants the administrators of the estate of Henry 0. Johnston, deceased. The court also, on grounds that are not questioned, set aside the first sale, and directed a resale. The two lots of land in suit realized $6,400, which, less costs, was distributed among the parties according to their interests. As this sale was made within three years after the granting of letters of administration, it is urged that the moneys should have been paid into court. (Code Civ. Proc. § 1538.) But this interlocutory judgment did not provide that the sale should “ be free from the hen of every debt of such decedent.” A final accounting of the estate had also been had before the surrogate. The court, therefore, could distribute the fund to those entitled, and was not called on to tie up the part of the proceeds representing the estate of Henry C. Johnston. The referee’s percentage for paying out moneys (§ 3297) was rightly cast under the Code of Civil Procedure, section 3253. The court gave allowances in all of five per cent, although plaintiff also taxed sixty dollars statutory allowance. (Code Civ. Proc. § 3252.) This was not error. By the words total allowances ” (Warren v. Warren, 203 N. Y. 250), which cannot exceed five per cent, Judge Werner meant those given by the court, and did not refer to the statutory allowance of sixty dollars under section 3252 of the Code of Civil Procedure, which follows a recovery as a matter of course.” (O’Neill v. Gray, 39 Hun, 566.) While these proceedings were not exceptional or peculiarly difficult, the allowances aggregating five per cent, were clearly within the court’s discretion.

The final judgment appealed from is affirmed, but without costs.

Burr, Thomas, Rich, Stapleton and Putnam, JJ., concurred.

Final judgment affirmed, without costs.  