In re the Judicial Settlement of the Account of Proceedings of Hammer

Schulz, S.— Since the publication of the opinion- of this court in Matter of Hammer (Molino Estate), ante, 36, schedule 0 of this account there referred to has been amended on consent, and with- the stipulation that the objections theretofore filed be considered amended so .as to except to the' allowance in said amended schedule C for stenography and typewriting “ as not being a proper charge against the funds in this estate.” The matter presents the question whether the public administrator of Bronx county is -entitled to charge against an estate of which he is administrator the reasonable expenses for typewriting and stenography incurred by him in the administration of the -estate. Under the provisions of the act erecting the county of Bronx (Laws of 1912, chap 548, § 3, as amd. by Laws of 1913, chap. 825) the public administrator is entitled to receive and retain to himself “ the same allowance for his services -and expenses incurred ” as was allowed to a county treasurer under former section 2668 of the Code of Civil Procedure. (Matter of Molino, supra.) Under the latter section a county treasurer must be allowed upon the settlement of bis accounts for his expenses as are other administrators and for his services double the commissions allowed by law. Section 2692 of the Code of Civil Procedure provides- that an administrator may pay from the funds- or estate in his hands, from time to time, his legal and proper expenses of administration necessarily incurred by him and that such expenses and disbursements shall be set forth in his account when filed, and settled by the .surrogate. It follows, therefore, .that the public administrator is entitled to pay his proper expenses- of adminis [334] tration. necessarily incurred by him, subject to review, when his final accounts are settled by the surrogate. The preparation of letters and other documents in typewritten form and the employment of a stenographer for that purpose have become such well-recognized practices' in business and in the practice of the law as to amount almost to necessities. The Legislature did not confer upon the public administrator the right to appoint a stenographer whose salary is payable out of the public funds (People ex rel. McDonnell v. Prendergast, 167 App. Div. 140 ; affd., 217 N. Y. 604) ; hence if the court holds that an item of expense for stenography and typewriting is improper, the public administrator must either do the typewriting himself or pay for it and for the services of a stenographer out of his salary or commission. I should be unwilling to hold that an allowance for a reasonable expenditure for stenography and typewriting is improper in every case, unless adherence to the decision of some appellate tribunal makes this, necessary. In People ex rel. McDonnell v. Prendergast (supra), there is a statement in the opinion which at first glance might appear to favor such a holding, for the court says: “ I am of opinion * * * that it was intended that he should, at his own expense, employ such services as might be necessary to enable him properly to perform the duties of his office.” If the question before the court at that time had been upon the right of the public administrator to an allowance upon his final accounting for moneys expended for stenographic work, I would feel concluded by the statement quoted, but the contrary appears to be the fact from the following also appearing in the opinion: “ The general rule is that an administrator must personally perform, or at his own expense provide for the performance of all clerical duties incident to the administration (Matter of Binghamton Trust Co., 87 App. Div. 26) ; but we are not now concerned with the question as to allowance to the public administrator for expenses for clerical or other work.” [335] While the rule is as stated, allowances have been made to executors for payments to bookkeepers, agents, clerks and even, for office rent. (Merritt v. Merritt, 32 App. Div. 442, 452 ; affd., without opinion, 161 N. Y. 634 ; Wells v. Disbrow, 20 N. Y. Supp. 518 ; Garvey v. Owens, 12 id. 349 ; Matter of Nesmith, 140 N. Y. 609.) The propriety of granting such •allowances rests in 'the sound discretion of the court and each case must necessarily be decided upon its own peculiar facts. I do not believe that upon the facts in this matter the general rule referred to is violated by permitting the item charged for ■stenography and typewriting to stand. There being no objection to the reasonableness of the expenditure and no contention that the same was not made, the objection is overruled and the account will be settled as filed and amended. Decreed accordingly.