should be held to be any formal mistake in this respect, the judgment cannot be reversed on account of it, for it can in no manner prejudice or injure the defendants, or those represented by them, in the least degree, and must, in conformity with §§ 721-23 of the Code of Civil Procedure be disregarded. The case contains no such defects as those in Wood v. Orser, 25 N. Y., 348. And that decision, therefore, has no application to the controversy.

But it does appear that a larger amount of interest was allowed by the referee than could legally be computed for the time mentioned in the report.

So, also, it appears from the evidence that the sales made by the firm of Theodore W. Bailey & Co. to Kantrowitz were not induced by means of fraudulent misrepresentations, as the others were. John W. Hoyt, the witness examined in behalf of that firm, testifies that he made the sales relying upon a statement obtained from Dun & Company concerning the financial condition of Kantrowitz, while it appears by the evidence of a person in the employment of Dun & Company that no statement was obtained from Kantrowitz by that firm. And Kantrowitz himself testifies that he made no statement of his affairs to that firm, and there was no proof in the case that he ever had made such a statement. And consequently he was not responsible for the information which Dun & Co. may have given to the representative of Bailey & Company. Mr. Hoyt was recalled and further examined as a witness, but he stated no more upon this subject than that Kantrowitz said, "I have money and stock enough to make a success of it." This, however, was not made in any form the foundation of the referee's decision as to the plaintiff's right to recover for the goods sold by Bailey & Company. He has placed that upon the statement that Kantrowitz represented himself to be worth $15,000, which was $12,000 over his debts and liabilities, and that this firm sold the goods which they delivered to him relying upon the truth of that representation. This conclusion of the referee is unsupported by the evidence. And for the goods which they sold, amounting to the sum of $768.62, the plaintiff did not accordingly establish his right to maintain the action. As to this part of the case the evidence was radically defective. But it does not follow that the judgment should be reversed on account of this error, for this was a separate and distinct sale from each of the others, alleged as the ground of the sixth cause of action mentioned in the complaint. And where that is the nature of the demand erroneously found to exist, the judgment may be corrected by its deduction with the assent of the plaintiff. Crim v. Starkweather, 88 N. Y., 339, 341.

On this account, and to correct the allowance of interest contained in the report of the referee and the judgment, the judg ment should be reversed, and a new trial ordered, with costs to abide the event, unless within twenty days after notice of the decision the plaintiff shall stipulate to deduct this sum of $768.62, with the interest upon it, and the excess of interest allowed upon the other items, from the judgment. In case of such stipulation being given, then the judgment will be modified by correspond

ingly reducing its amount, and affirmed, as modified, without costs of the appeal to either party.

VAN BRUNT, P. J., and BRADY, J., concur.

G. WALDO SMITH et al., Resp'ts, v. PHILIP BERNHARDT, App'lt.

(New York Common Pleas, General Term, Filed November 14, 1890.)

FALSE REPRESENTATIONS-PLEADING.

A complaint alleging that defendant was the agent and manager of his wife's business, and to induce plaintiffs to sell to her on credit procured her to fill out a statement upon information given by him and which he knew to be false, and forwarded the same to plaintiff, who on the strength thereof sold the goods, states facts sufficient to constitute a cause of action against defendant for false representations. The defendant, under the cir cumstances, was not an agent, but a principal.

APPEAL from an order overruling demurrer to amended complaint, and from the judgment following said order.

This was an action for the recovery of damages arising from false representations.

The facts, as shown by the complaint, were, that the business was in the wife's name, the defendant was the manager, general agent, and knew all about her affairs, her assets and liabilities, and with such knowledge applied to plaintiffs for a sale on credit. Plaintiffs demanded the usual statement and sent a blank form to the wife's place of business; it was received by defendant and, by his procurement, filled out by his wife, upon information given by him, and under his direction signed by her, delivered to him, and by him forwarded to plaintiffs. Upon the strength of this contrivance the goods were sold and delivered by the plaintiffs, who relied upon the statement thus procured. Representations contained in it were false to defendant's knowledge, and plaintiffs have lost their claim.

J. H. Hildreth, for app'lt; Jas. A. Seaman, for resp'ts.

DALY, Ch. J.-The complaint is sufficient in alleging a false representation made by the defendant with knowledge of its falsity, and the injury to the plaintiffs resulting from the insolv ency at the time of the party concerning whom the representation was made, it having been made by the defendant to induce the plaintiff to give that party credit. The defendant is not an agent, but a principal, because he directly sent to the plaintiffs the writ ten false representation to induce them to make the sale which they afterwards did. He made the false statement with full knowledge of the actual condition of his wife's business. So, if she were insolvent at the time, he must have known the fact, because it is charged in the complaint that he was managing her business.

Judgment affirmed.

BISCHOFF and PRYOR, JJ., concur.

In the Matter of the Estate of WILLIAM SMITH, Deceased.

(Surrogate's Court, New York County, Filed November, 1890.)

1. EXECUTORS AND ADMINISTRATORS-ACCOUNTING-COUNSEL FEES.

An accounting party is not confined to §§ 2561, 2562 of the Code in remunerating his counsel, but may expend such sum as he deems proper in that behalf, to be included in his accounts, and the correctness and propriety of which may be contested by the persons interested.

2. SAME.

To justify such items in an account, it must appear that services beyond the ordinary preparation of the account, or for trial, were rendered and were necessary.

SETTLEMENT of accounts of administrator.

Evarts, Choate & Beaman, for administrator; M. M. Budlong, for contestants.

RANSOM, S.-The sole objection raised to the account under consideration is the item therein for services of counsel. The gravamen of the objection is that these services were rendered in a proceeding for an accounting, and that the personal representative is confined to $ 2561, 2562 of the Code of Civil Procedure for remuneration of his counsel. In other words, that, without regard to the value of the services rendered, the character of the litigation, the size of the estate, the question or the amount involved, he can pay his counsel not exceeding ten dollars per day for the actual number of days spent upon the accounting, and that if he does compensate him at a higher rate, he cannot be indemnified from the funds of the estate.

In proceedings in the surrogate's court it is very frequently the case that the services rendered are amply compensated by the statutory allowance, and it may happen in some instances that an allowance up to the limit prescribed would be excessive, but the cases are numerous where the allowance which the surrogate may make upon the entry of decree, by way of costs, is grossly inadequate.

In 1 Connoly, 564, the surrogate, in his remarks to the bar, commenting on the impossibility in every instance of compensating counsel by an allowance made by way of costs on the entry of decree, said: "It is the duty of the executor to employ and pay, as a matter of independent private contract between himself and the attorney, such compensation as the attorney fairly earns; and that amount of money should go into his account, and, when presented, would be allowed by the surrogate out of the estate, if fair and reasonable. It is a misapprehension on the part of the bar to suppose that attorneys can get adequate compensation under what is known as 'a per diem allowance, * * * they should have obtained their pay from their clients before, and put it in the account." And it is the practice to require information upon this point upon the entry of the decree, for in taxing costs the surrogate of this county requires information upon the question whether compensation has been paid out of the funds of the estate N. Y. STATE REP., VOL. XXXIII.

117

for or on account of the services specified in the bill, and the printed form of affidavit supplied in this court contains an averment on this point.

In the Matter of Bailey, 47 Hun, 477; 14 N. Y. State Rep., 325, the general term, Judge Parker writing the opinion, say: "While the authority of the surrogate to award costs is thus limited by statute, executors or administrators are in no wise precluded froin employing counsel to give them necessary legal assistance in the management of their trusts, or from compensating counsel according to the value of the services rendered. For payment so made a claim may be made for reimbursement out of the funds of the

estate."

In this case the services were rendered by the attorney, not for the protection and benefit of the estate, but they were solely for the benefit of the executor in an action brought against him for misconduct in his office as executor, in which contest he was successful.

Numerous cases have been cited by counsel for objector to sup port his contention.

Also

Matter of Clark, 36 Hun, 301, holds simply that an executor is entitled to trial days where a reference has been had in the same manner as if the trial had occurred before the surrogate. that the Code does not contemplate an allowance for days on which adjournments occurred without any actual hearing. It is apparent that the case is not pertinent to the point presented.

In Harward v. Hewlett, 5 Redfield, 330, the account contained a charge of seventy-five dollars for the expenses of final accounting and services rendered to the executor by his attorneys. Surrogate Livingston said: "The costs of this accounting have no place in the account, as they must first be fixed and allowed by the decree. If any charge is made for counsel fees paid in this proceeding it should be separately stated, so that the court may judge whether it exceeds the limit fixed by § 2562 of the Code."

Counsel for contestant refers to this case as the only one where the executor has taken the course pursued by the administrator herein. He evidently has not seen the decision of the general term in the case of Bailey, supra. The character of the services covered by the seventy-five dollars is not mentioned in the opinion, nor in the statement preceding the same, and we are therefore in the dark as to whether the services were such as would merit additional compensation beyond the costs to be awarded upon the entry of the decree.

Walton v. Howard, 1 Dem., 103, cited by counsel for contestant as in favor of his contention, seems to me to be authority to the contrary. This is a decision by Judge Rollins, rendered in August, 1882, and is the first case wherein he considered the state of the law as to allowances, and sets forth at length his views with reference to the power of the surrogate under $2561 and $2562. After referring to those sections and the restrictions imposed thereby, Judge Rollins says: "It need scarcely be said that the statute, which has thus regulated the authority of the surrogate to award costs, does not preclude executors from employing

counsel to give them necessary legal assistance in the management of their trusts, or from rewarding the services of such counsel according to their value, and without reference to the limitations of the Code of Civil Procedure. For payment so made such an officer may, of course, present to the surrogate his claim for reimbursement out of the funds of the estate. Such claim may justly form, as it often does form, one of the items with which he credits himself in his accounts, and, so presented, it is laid bare to the scrutiny of all persons interested in the estate, may be objected to, like all other items, by any party who chooses to contest it, and will be allowed or disallowed, according as it is ascertained to have been a proper or an improper disbursement. Gilman v. Gilman, 6 T. & C., 214; affirmed, 63 N. Y., 41.

"Whether upon a final accounting such payment to counsel can ever be sanctioned as a charge against the estate when it recompenses services which have already been the subject of taxation by the surrogate, and for which the accounting party has been granted the statutory allowance, need not be here determined.

"All that is now necessary to maintain is the proposition that, however distinguished may be the counsel and however valuable his services, the surrogate has no power to award, under any circumstances, a larger compensation than ten dollars per day, in addition to seventy dollars.

"This is, no doubt, in many instances a very meagre and insufficient award; far less than the court would feel bound to allow in the exercise of a wider discretion; but it is the maximum reward which the law has established, and that law, both in its letter and spirit, must be obeyed and respected."

The meaning of the surrogate in the two paragraphs next preceding the last is not entirely clear. In my opinion, this case cannot be regarded as authority against the conclusion I have reached. The surrogate expressly refrains from passing upon the precise point, but all the intimations therein are favorable to the conclusion I have reached.

In Hall v. Campbell, 1 Dem., 415, the executors sought to retain from the balance in their hands $280 paid to a bookkeeper for making up the accounts, in addition to counsel fees authorized by 2562. This claim was disallowed. The case is not pertinent to this controversy.

Previous to the Revised Statutes it was not the practice of the surrogate's court to give costs in favor of one party against another in testamentary matters. Costs were given by the ecclesiastical courts of England in such cases, both in original suits and on appeals, but it seems that such a practice was never adopted in this state.

By the Revised Statutes the legislature changed the law in this respect, and enacted the law as it existed in the ecclesiastical courts of England at the time of the settlement of this state. Although no fee bill was expressly adopted by statute for advocates and proctors in the surrogate's court, it was not the intention of the legislature to leave it to the several surrogates to make an arbitrary allowance for services and counsel