ment thereof, unless, indeed, the defendant came to its rescue and paid the tax.

It is urged by the defendant that in no event can that portion of the assessment which is based upon the item of $3,600 of income which the plaintiff received as interest on its investments be charged against the defendant, as these investments are in no way connected with the operation of the leased property. Even if there be force in that suggestion, it is unimportant here, for the only concern of the court on this demurrer is whether the complaint states any cause of action. It is not material now that the plaintiff is seeking more relief than it may ultimately be determined to be entitled to.

The demurrer should therefore be overruled, with costs, with leave to the defendant to answer upon the payment of such costs.

Demurrer overruled, with costs, with leave to defendant to answer upon payment of costs.

In re BLADEN et al.

(Supreme Court, Appellate Division, Second Department. March 26, 1915.) 1. INSANE PERSONS 12-GUARDIANSHIP-ACCOUNTING BY COMMITTEE OF PERSON OF INCOMPETENT.

Though ordinarily a proceeding to settle the interim accounts of the committee of the person of an incompetent is unnecessary, yet, where the committee has an accumulating surplus resulting from allowances in advance not being expended, the committee may voluntarily account, or the committee of the estate may apply for an accounting.

[Ed. Note. For other cases, see Insane Persons, Cent. Dig. §§ 64-67; Dec. Dig. 42.]

2. INSANE PERSONS

41-GUARDIANSHIP COMPENSATION OF COMMITTEE. In determining compensation of a committee of the person of an incompetent, the difficulties in connection with the home and person of the incompetent when the committee began their duties are rightly considered. [Ed. Note.-For other cases, see Insane Persons, Cent. Dig. §§ 39, 63; Dec. Dig. 41.]

3. REFERENCE 76-COMPENSATION OF REFEREE-STATUTORY PROVISIONS. The maximum compensation allowed a referee is fixed by Code Civ. Proc. § 3296, at $10 per day, with his stenographer's expenses, and the court may not allow greater compensation.

[Ed. Note.-For other cases, see Reference, Cent. Dig. §§ 109-113; Dec. Dig. 76.]

Appeal from Kings County Court.

Application of John T. Bladen and another, as committee of the person of Samuel E. Haslett, an incompetent, for settling interim accounts of the committee. From an order confirming the report of a referee, adjusting and determining the account of the committee and fixing the compensation of the committee, with award of costs and allowances, the Brooklyn Trust Company, committee of the property of the incompetent, and John T. Bladen, both appeal. Modified and affirmed.

See, also, 164 App. Div. 955, 149 N. Y. Supp. 1071.

Argued before JENKS, P. J., and THOMAS, STAPLETON, RICH, and PUTNAM, JJ.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Francis L. Archer, of Brooklyn (Edgar M. Cullen, of Brooklyn, on the brief), for appellant Brooklyn Trust Co.

Robert H. Wilson, of Brooklyn, for appellant Bladen.

S. Stanwood Menken, of New York City, for respondent.

PUTNAM, J. The committee of the person of Mr. Haslett, an incompetent, presented to the County Court an interim account, covering the period of 20 months-March 18, 1912, to November 18, 1913. The Brooklyn Trust Company and Mr. John T. Bladen had been appointed committee of the property of the incompetent, and Mr. Bladen, with Mrs. Ellen Haslett Samuel, committee of the incompetent's person. Code of Civil Procedure, § 2322, expressly declares that the committee of the person and the committee of the property "may be the same individual, or different individuals, in the discretion of the court."

On June 7, 1912, the committee of the property had been ordered to pay to the committee of the person $1,000 a month for the incompetent's maintenance. Mrs. Samuel resided in Richmond borough, and Mr. Bladen is a member of the bar in Brooklyn, so that the principal duties of the committee fell on him. A year after these appointments, the Brooklyn Trust Company and Mr. Bladen filed an account of the committee of the property. That accounting and the order settiing the accounts is not before us for review. It was introduced to show that upon this earlier accounting Mr. Bladen, as one of the committee of the property, had been allowed $5,215.68 statutory commissions and $6,000 as extra compensation, with $5,162.92 as fee and disbursements of his attorney.

In December, 1913, the committee of the person filed its account, and asked that it be judicially settled. In the 20 months covered it showed receipts $18,432.06, disbursements for the incompetent of $8,929.76, leaving in hand $9,502.30. Instead of spending the monthly allowance, the disbursements had been under $450 a month, in which are medical expenses, as well as ordinary household outlays. An examination of the account reveals the committee's care and prudence in its manifold duties. On December 15th the court sent to a referee to state the committee's account, and to report what this committee of the person should have as proper yearly compensation.

After hearings before the referee had begun, the Brooklyn Trust Company moved to vacate this order of reference, on the ground that the Code of Civil Procedure contained no provision for settling interim accounts of a committee of the person, and urging that for a committee of the person such proceedings were needless and expensive. This motion was denied, and the hearings before the referee went on and his report ensued. After this report, Mr. Bladen moved to increase the referee's recommendation of $3,300 as appellant's yearly compensation, as well as the fee of $2,500 for Mr. Bladen's counsel. The County Court, however, denied this motion for increases, and confirmed the report. The Brooklyn Trust Company and Mr. Bladen have each appealed.

[1] Ordinarily such proceedings to settle the interim accounts of the committee of the person are unnecessary. Diaper v. Anderson,

37 Barb. (N. Y.) 168. The accounts are to be filed yearly, to inform the court how the trust is being discharged. Matter of Hawley, 104 N. Y. 250, 10 N. E. 352. But this committee of the person had an accumulating surplus, and we cannot say that its petition for a settlement should not have been entertained. This large allowance was unlike a precise monthly payment to an asylum, which carries no duty to account. When the sum allowed in advance has not been expended, the committee of the person should account. In such case the committee of the estate may apply against the committee of the person to find out what had become of the money which had been handed over for that specific purpose. In re French, L. R. 3 Chan. Appeals, 317. But such a voluntary accounting, with a judicial settlement thereof following so soon after that, by the committee of the property, should not be made burdensome to the estate.

[2] After careful consideration of the referee's report and instructive opinion, we find no ground to disturb his conclusions as to the committee's yearly compensation. In reporting such compensation, the difficulties in connection with the home and person of the incompetent, when the committee had to begin their duties, were rightly considered. These conditions and difficulties, however, are lessened as the duties and position of the committee become established. A majority of the court are of opinion that after November 18, 1913, the date of the present accounting, this compensation should be reduced, so that Mr. Bladen shall thereafter be paid at the rate of $1,800 per year, with $900 per year to Mrs. Samuels.

As Mr. Bladen is himself a member of the bar, and in view of the allowances to his same counsel upon the prior accounting, Mr. Wilson's counsel fee should be reduced to $1,500; also counsel for Mrs. Samuel should be allowed but $750.

[3] It does not appear that the learned referee asked for the sum which the court allowed him as referee. While he has rendered important services, which for counsel of his standing may well be valued at the compensation allowed, the court cannot go beyond the terms of the statute (section 3296, Code Civ. Proc.), to which limit of $10 a day, with his stenographic expense, we reduce the allowance made by the learned County Court.

As thus modified, the order should be affirmed, with costs of this appeal to the Brooklyn Trust Company, payable out of the incompetent's estate. All concur.

MECUM V. BECKER et al. (No. 6905.)

(Supreme Court, Appellate Division, First Department. March 19, 1915.) 1. FRAUD 11-MISREPRESENTATION-OPINION-VALUE.

Misrepresentations concerning the value of real property sold, being expressions of opinion, cannot serve as basis for recovery in an action of tort, which can be predicated only upon false representations made with respect to existing facts, as distinguished from estimates, expectations, opinions, or conjectures.

[Ed. Note. For other cases, see Fraud, Cent. Dig. §§ 12, 13; Dec. Dig. 11.] 2. FRAUD 58

DENCE.

MISREPRESENTATIONS

RELIANCE SUFFICIENCY OF EVI

In an action for fraudulent representations in inducing plaintiff to exchange her house for two owned by defendant, evidence held insufficient to justify finding that representations were made, and that plaintiff relied thereon in consummating a contract of exchange previously signed. [Ed. Note.-For other cases, see Fraud, Cent. Dig. §§ 55-59; Dec. Dig. 58.]

3. BROKERS 106 REAL ESTATE AGENT--AUTHORITY-SUFFICIENCY OF EVIDENCE.

In an action for fraudulent representations made in inducing plaintiff to exchange her house for two owned by defendant, evidence of authority of a real estate agent to act for defendant held insufficient to warrant finding that defendant was liable for representations made by such agent. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 149-153; Dec Dig. 106.]

Basis must be laid in evidence, as by showing what proportion of the damage each defendant caused, to justify the apportionment of plaintiff's recovery of damages among several defendants.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 788; Dec. Dig. 335.]

Appeal from Trial Term, New York County.

Action by Elizabeth A. C. Mecum against C. Adelbert Becker and others. Judgment for plaintiff, and defendant Becker appeals. Reversed.

See, also, 150 N. Y. Supp. 1096.

Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ.

Louis Marshall, of New York City (Charles P. Hallock, of New York City, on the brief), for appellant.

Louis O. Van Doren, of New York City (Herrick McClenthen, of New York City, on the brief), for respondent.

LAUGHLIN, J. This action was brought to recover damages for deceit in inducing the plaintiff to exchange her house, known as No. 48 West Tenth street, in the borough of Manhattan, New York, for two apartment houses known as Nos. 2372-74 Webster avenue, borough of the Bronx, which were owned by the appellant, and a recovery has been had for the difference between the actual value of the Webster avenue

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 152 N.Y.S.-25

apartments and their value as it was claimed they represented it to plaintiff to be.

The defendants Mooyer and Marston constituted a firm of real estate brokers employed by the plaintiff, but alleged by her to have acted, without her knowledge or consent, for, and to have received a commission from, the appellant, and the defendant Collins was in the employ of said firm of brokers, and for it had direct charge of the negotiations resulting in the exchange of the properties. Collins did not appeal from the judgment; but Mooyer and Marston appealed, and pending their appeal they settled with the plaintiff for $2,500, and she released them from liability. That settlement and release were the basis of a motion by appellant to vacate the judgment against him, on the ground that the defendants were all joint tort-feasors and that a release of one released all. The motion was denied, and the order was affirmed by this court (Mecum v. Becker, 164 App. Div. 862, 149 N. Y. Supp. 974); and we are informed that an appeal from our decision is pending in the Court of Appeals.

The plaintiff relied principally upon her own testimony to prove her case. No. 48 West Tenth street had been her family home and she had owned the premises since 1898; but after her marriage she left the city and was absent in Illinois for some 15 years. In the meantime she rented the house. In January, 1910, while on a visit to New York City, she met the defendant Collins, whom she had known since her girlhood, on the street, and was informed by him that he was associated with a reliable real estate firm, composed of the defendants Mooyer and Marston. She testified:

That her house became vacant about the 1st of October, 1910, and she called at the office of Mooyer & Marston, and, Collins being absent, she requested one of their employés to list her house for rent and to draw Collins' attention thereto. That a day or two later, but early in October, Collins called on her, and she informed him that it would be necessary to make certain repairs before the house could be rented, and that she desired them made as soon as possible, and at his suggestion they inspected the house, and he advised her that it would cost $5,000 to repair it properly, and that she would never get the money back, and that it would be better to sell, and she urged him to endeavor to sell it, and he asked who she thought would be interested in purchasing it, and she suggested that he see certain neighboring owners, and gave him. their names. That about one week later he informed her that he had interviewed those whose names she had given him, and had made other efforts to sell without success, and said that there was no demand for such property at that time, and again reiterated that it was unwise to expend the amount of money necessary to repair the house, and suggested the possibility of exchanging it to her advantage, and said that he would consult his firm on that point. That three or four days later he called again, and stated that he had a friend, a Dr. Becker, the appellant, up in the Bronx, who was a millionaire and a bank president, and a very fine type of man, and who owned apartment houses there, and that he thought he could make an exchange with him, to which she replied that she knew nothing about running apartment houses and wanted nothing to do with that class of property, whereupon he said