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On the contrary, she has shown that Mrs. Hill died testate, leaving a considerable estate and a duly appointed executor, and that all of the next of kin are satisfied with the decision of the Appellate Division, and do not desire an appeal to the Court of Appeals. I do not understand that it is the duty of an administrator to exhaust all possible remedies and to take all possible appeals, nor do I understand that counsel may be forced upon an administrator, but that he has some discretion in the exercise of his duties.
 We think it was irregular to ingraft upon a proceeding to appoint an administrator an entirely separate proceeding to remove her, and that the order appealed from should be reversed, with $10 costs to the appellant. All concur.
MERRILL et al. V. PARSONS. (No. 334-38.)
(Supreme Court, Appellate Division, Third Department. January 15, 1915.) EXECUTORS AND ADMINISTRATORS ($ 281*)—FEE PAID SURROGATE-RECOVERY.
Where an administrators' account had been surcharged with the amount paid by an attorney for the estate, from his contingent fee, to a surro gate who unlawfully acted as counsel for the administrators, on the ground that the surrogate was brought into the case by virtue of an arrangement between himself, the administrator, and the other attorney before the contingent fee contract was made, the administrators can recover from the surrogate the amount so paid to him.
[Ed. Note.--For other cases, see Executors and Administrators, Cent. Dig. &$ 1102–1104, 1106-1115; Dec. Dig. § 281.*]
Woodward, J., dissenting.
Application by Susie Merrill and Diar Baker, as administrators of the estate of Orson A. Van Alstine, deceased, against Robert S. Parsons, attorney at law, to compel the attorney to pay to the administrators a sum which he had received as counsel for them. Proceeding dismissed, and petitioners appeal. Reversed, and petition granted.
The opinion of Mr. Justice GLADDING at Special Term was as follows:
This is a proceeding to compel Robert S. Parsons, as an attorney at law, to pay to the petitioners $600 which he has received as counsel for plaintiffs (the petitioners herein) in an action which they brought as administrators to recover for the negligent killing of their intestate.
The administrators were appointed by Judge Parsons as surrogate of the county of Broome, and it was during his term of office that he acted as such counsel and received the $600 for his services. Of course he had no right to act as counsel in that action. By section 2495 of the Code of Civil Procedure he was prohibited from acting as attorney or counsel for the administrators. He violated that law when he became counsel for the plaintiffs in that action, and had no valid claim or right to the $600. In case he is not required to pay it back, then in what way he is amenable for this violation of law is a question not now before me.
The respondent's attorney in his able brief suggests several legal grounds which he claims require a denial of the relief asked, but I find there is a question of fact which disposes of this proceeding before reaching the legal propositions discussed. This question of fact is whether the $600, which Mr. •For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
Van Cleve, the attorney of record, paid to Judge Parsons for the latter's serv. ices as counsel for the plaintiffs in the action, was money belonging to the plaintiffs or belonging to Mr. Van Cleve the attorney. Of course, if it belonged to Van Cleve, and the plaintiffs had no interest in it, then Van Cleve is the person entitled to it, and the only person entitled to recover it. In this proceeding, wherein Mr. Van Cleve is not a party, and in which Judge Parsons for the first time has had an opportunity to be heard upon the questions involved, I believe it is my duty to decide this question of fact without reference to, and without being influenced by, any decisions heretofore made in another proceeding between different parties. Upon the papers and proofs submitted I feel compelled to find and hold that the $600 paid Judge Parsons was money then and now belonging to William F. Van Cleve. The proof does not warrant a finding that it was money belonging to the plaintiffs, or that they had any interest therein.
The facts relating to this question are not in dispute, and are wholly uncontroverted by the testimony submitted to me. The claim of the administrators against the defendant in the action to recover for their intestate's death was attended with much doubt and many difficulties, as the three trials and various appeals disclosed. There was no money or assets of the estate available to prosecute the claim. · Under those circumstances Van Cleve agreed with the administrators to act as their attorney to bring the action, pay all the expenses, charge nothing unless successful, and if a recovery was had to receive one-half thereof in full for his services. The amount recovered was $4,413.21, which was paid to the attorney. He deducted the expenses, $260.47, and paid half of the remainder to the administrators pursuant to the agreement. He had employed Judge Parsons as counsel, and from his own half of the recovery he paid Parsons the $600 sought to be recovered by the petitioners herein.
As was said by Justice Houghton in the appeal by the special guardian from the decree of the Surrogate's Court settling the account of the administrators (Matter of Merrill, 151 App. Div. 789, 136 N. Y. Supp. 887): "The agreement that the attorney [Van Cleve] should have one-half the recovery for his services, under the circumstances disclosed, was not unconscionable, and there is no dispute that such was the agreement. Nor is there any dispute that he paid their one-half to the administrators,
or that the attorney, Van Cleve, paid the $600 to the surrogate from his own half of the recovery." Mr. Van Cleve so testifies, and I believe what he says. It is not disputed, not even by the petitioners in this proceeding. Possibly, in an action wherein the question can be litigated, evidence might be adduced which would warrant a finding that the $600 belonged to the plaintiffs in the action, the petitioners herein.
I dismiss this proceeding, without costs, and without prejudice to an action, or any other proceeding which the petitioners may be advised to insti. tute.
Nichols & Lewis, of Binghamton (William L. Lewis, of Binghamton, of counsel), for appellants.
Edmund B. Jenks, of Whitney's Point, for respondent.
PER CURIAM. Both parties offered as testimony the evidence in the record which was before us in Matter of Merrill, 151 App. Div. 785, 136 N. Y. Supp. 884. The facts have not been changed. The administrators' accounts have been surcharged with this payment. It would seem inequitable if they should not be allowed to recover it back from the attorney, to whom it has been held that they have unlawfully paid the same.
The order should therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur, except WOODWARD, J., who votes to affirm on the opinion of Mr. Justice GLADDING at Special Term, and LYON, J., not voting.
(Supreme Court, Appellate Division, first Department. February 19, 1915.)
1. LIFE ESTATES ($ 25*)—LEASE BY LIFE TENANT-TERMINATION-LIFE TEN
A lease executed by a life tenant terminated on her death.
[Ed. Note.-For other cases, see Life Estates, Cent. Dig. § 47; Dec.
Dig. § 25.*] 2. LANDLORD AND TENANT ($ 118*)_LEASE-TERMINATION-USE AND Occu
Where tenants under a lease by the owner of a life estate continued in possession after termination of the lease by reason of the life tenant's death, they were tenants of the remainderman at will, and liable for use and occupation, the value of which was measured by the amount defendant agreed to pay as rent during the continuance of the lease, including taxes and assessments as provided therein.
[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $$ 402
415; Dec. Dig. § 118.*] 3. LANDLORD AND TENANT ($ 99*)-RELATION OF LANDLORD AND TENANT
TERMINATION-NOTICE TO QUIT-SUMMARY PROCEEDINGS TO REMOVE.
Where the lessee of a life tenant continued in possession after the life tenant's death, whereupon the remainderman gave notice to quit, and brought summary proceedings to remove defendants from the property, and recovered a final order, but no warrant of removal was issued thereon, there was no termination of the relation of landlord and tenant between defendants and the remainderman, under Code Civ. Proc. § 2253, providing that the issuing of a warrant for the removal of a tenant from premises cancels the agreement for the use thereof, if any, under which the person removed held them, and annuls the relation of landlord and tenant.
[Ed. Note-For other cases, see Landlord and Tenant, Cent. Dig. $$ 402415; Dec. Dig. $ 99.*]
Laughlin, J., dissenting.
Appeal from Trial Term, New York County.
Action by Alfred P. Hinton and others against George E. Bogart. Judgment for defendant, and plaintiffs appeal. Modified, and judgment directed for plaintiffs.
See, also, 79 Misc. Rep. 418, 140 N. Y. Supp. 111.
Herman S. Hertwig, of New York City, for appellants.
INGRAHAM, P. J. The property in question was owned by one Ellsworth, who died the 18th of January, 1873, leaving a last will and testament by which he devised certain real property, known as Nos. 146, 148, and 150 West Twenty-Ninth street, in the city of New York, to his daughter Sarah Hinton for life, remainder over to her children, who were the plaintiffs in this action. On November 1, 1901, Sarah Hinton, the life tenant, leased the premises to defendant for a term of 10 years, at a yearly rent of $1,800, and defendant also agreed to pay all taxes and assessments that might become a lien on said premises during the term of the lease, with an option to re*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
new for a further term of 10 years at the same rent, and on the same terms, providing, however, that defendant should notify the landlord on or before October 1, 1911. Defendant entered into possession of the property under this lease, and continued in possession up to the time of the trial of this action. Sarah Hinton, the life tenant and lessor, died January 30, 1906, whereupon plaintiffs became vested with the property. Defendant continued in occupation of said premises after the death of Sarah Hinton as tenants at will of plaintiffs, until May 1, 1910, and paid rent at the times and amounts provided for in said lease, and also paid the taxes and assessments for the years 1907, 1908, and 1909, as therein provided.
On or about March 23, 1910, plaintiffs served on defendant and the undertenants a notice to quit on or before May 1, 1910. Defendant, however, refused to surrender possession of the premises on May 1, 1910, whereupon plaintiffs commenced proceedings in the Municipal Court to recover possession of the premises, and on the 21st of June, 1910, a final order was made and entered in the said proceedings awarding possession of the premises to the plaintiffs. This was affirmed on appeal to the Appellate Term on December 8, 1910. No warrant to remove the defendant from the premises was issued, and defendant continued to hold and occupy them. Since the making of the said final order in the dispossess proceedings, defendant paid to plaintiffs $450 at the end of each quarter, from May 1, 1910, to May 1, 1913, the amount named in said lease for the rent of the said premises. The payments were made and accepted, however, without prejudice to the rights of any of the parties. Subsequent to this final order in the dispossess proceedings, defendant paid the taxes which became a lien on the premises for the year 1910, but refused to pay taxes which became a lien on the property for the years 1911 and 1912, whereupon plaintiffs, in order to release the property from the lien thereof, paid said taxes to the city of New York, and brought this action to recover from defendant the amount of such taxes for the years 1911 and 1912. The court, after finding the facts, held that no obligation existed on the defendant to pay the taxes for those years, and directed judgment dismissing the complaint; and from the judgment entered thereon plaintiffs appeal.
[1, 2] Undoubtedly by the death of the life tenant the lease by her of the property terminated, and plaintiffs, as owners of the property, became entitled to possession thereof. Defendant, however, continued in possession of the premises, and continued to pay the rent reserved by the lease and the taxes upon the property down to May 1, 1910, at which time, by the notice served upon the defendant, plaintiffs required defendant to deliver possession of the property to them. There can be no question, I think, that upon the continuance in possession of the premises, holding under the lease, they became tenants at will, and became liable for the use and occupation; the value of the use and occupation to be determined by the amount defendant agreed to pay as rent during the continuance of the lease. And this relation is stated by the defendant to have existed until May 1, 1910. By that notice plaintiff attempted to terminate the relation; but the con
tinued possession of the defendant continued the tenancy at will, and defendant continued liable for the use and occupation of the premises. By section 220 of the Real Property Law (chapter 52 of the Laws of 1909), it is provided that the landlord may recover a reasonable compensation for the use and occupation of real property, by any person, under an agreement, not made by a deed; and a parol lease or other agreement may be used as evidence of the amount to which he is entitled.
 The continued possession of the property by the defendant, notwithstanding the notice served on March 23d, gave to the plaintiffs the right to continue the relation of landlord and tenant, and the defendant still continued liable for the use and occupation of the premises. The institution of summary proceedings to remove defendant from the property, and the final order entered in that proceeding, did not terminate that relation, for by section 2253 of the Code of Civil Procedure it is provided that the issuing of a warrant for the removal of a tenant from premises cancels the agreement for the use of the premises, if any, under which the person removed held them, and annuls the relation of landlord and tenant, and it is conceded that no final order was entered in that proceeding. And it seems to me clear that the service of the notice did not terminate the relation of landlord and tenant, or relieve defendant from the obligation to pay for the use and occupation of the premises subsequent to May 1, 1910, and if that relation was never terminated by the issuing of a warrant in the summary proceedings then the relation continued down to the time of the trial. It was the continued possession by the defendant, and his refusal to recognize the termination of the lease of the relation of landlord and tenant given it by the plaintiffs, that continued the relation, and not the payment of the rent accepted as the amount to be paid plaintiffs for the use and occupation of the premises, and therefore the condition under which such sum was paid quarterly to the plaintiffs; that the payment was to be "without prejudice to the rights of any of the parties" did not affect the relations in which defendant stood to the property and to the plaintiffs as landlords. Certainly defendant could not retain possession of the property and escape all obligation to pay for its use and occupation. Until the relation of landlord and tenant was actually abrogated by some act of both parties to the agreement, or by the issuing of the warrant in the dispossess proceedings, which under the Code is the only process in the dispossess proceeding which terminated the relation of landlord and tenant, that relation continued.
Defendant recognized this obligation by the continued payment of the amount reserved by the lease as rent, and also by the payment of taxes for the year 1910, which apparently he paid without any reservation. The rule that, when the lease terminated by the death of the life tenant, the defendant held over in possession of the property after the termination of the lease, this gave the plaintiffs the right to continue to treat defendant as a tenant is sustained by the authorities. In Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609, the tenant held over after the termination of his lease and continued in occupation of the