Grabb v. Nicholas

Per Curiam. The appeal is solely from the order of distribution in an accounting proceeding brought on by an order to show cause granted appellant, whose status as an interested party upon the accounting was not questioned until this appeal was taken. In our opinion Edell was an “ aggrieved party ” within the meaning of section 557 of the Civil Practice Act. The test is whether the adjudication has a binding force against the rights, person or property of the party seeking to appeal. If it does [448] he may be found to be aggrieved by the determination. (Cf. Ross v. Wigg, 100 N. Y. 243, 246.) Here it appears that two of the claimants to whom payments were directed are former wives of Edell. Their claims were based upon accrued alimony due from him and are not dischargeable in bankruptcy. (U. S. Code, tit. 11, § 35; Matter of Williams, 208 N. Y. 32.) Thus, Edell has a direct and exclusive interest to a limited extent in the decree under review and as an aggrieved party is properly before this court as an appellant. (Cf. Sanford v. Sanford, 58 N. Y. 67.) The fact that heretofore and in another appeal (286 App. Div. 986) we denied Edell the right to participate in a controversy between the New York receivers and the Florida trustee is not decisive. The order appealed from approves and confirms the accounts of the receivers of certain properties once owned by the appellant, and directs payment of commissions and disbursements to the receivers, allowances to counsel and claims of certain creditors filed in the representative creditors’ action. There were no objections to the account taken or filed upon the hearing of the motion at Special Term, and we cannot now pass upon any purported objections. Appellant’s contention that the claim of Shirley M. Edell for accrued alimony should be reduced by virtue of the Florida decree of divorce obtained by him is not well taken. (See Estin v. Estin, 296 N. Y. 308, affd. 334 U. S. 541.) As to appellant’s contention that the entire proceeds of the sale should be ordered paid to his trustee in bankruptcy, we deem this issue to have been foreclosed by prior judgments not before us upon this appeal. We make no attempt, however, to determine the title or right to any surplus of these proceeds, a question upon which the Special Term has not passed. Allowances were made to counsel for appellant and for his trustee in bankruptcy, who was made a party to the accounting proceeding. These allowances are patently improper. (Woodruff v. New York, Lake Erie & Western R. R. Co., 129 N. Y. 27.) The efforts of appellant and his trustee in bankruptcy could hardly be said to contribute to the process of procuring and protecting the fund in question, and the services rendered by their counsel were quite the opposite of being in aid of the receivers. The allowances for these services should not have been granted. It may be that counsel whose allowances are disapproved may qualify as creditors of appellant, subject to the limitations thereon imposed by the order from which this appeal is taken, but we do not pass upon this question. [449] As to the allowance to counsel for the receivers, although we recognize and appreciate the volume and unusual character of the services in successfully resisting the continuous and persistent opposition, we believe the allowances excessive in proportion to the fund available for distribution. The allowance to counsel for Clarence F. Grabb, receiver in the creditors’ action, should be reduced to $3,500, the allowance to counsel for Albert E. Gilbert as receiver for Shirley M. Edell should be reduced to $2,500, and the allowance to counsel for Gilbert as receiver for Evelyn M. Edell should be reduced to $2,200. With the exceptions above noted, the payments, disbursements and allowances granted by the order appealed from are approved. Because the reduction of the allowances directed hereinabove will create funds requiring disposition which ñas not been considered b;?- the Special Term, the proceeding should be remanded to that court for a supplemental order not inconsistent with this opinion.