In the Matter of the Petition of Etta Rosenson, Appellant, to Render and Settle Her Account as Administratrix, etc., of Isaac Stein, Also Known as Murray J. Stein, Deceased. Julie Stein, Respondent

In the Matter of the Petition of Etta Rosenson, Appellant, to Render and Settle Her Account as Administratrix, etc., of Isaac Stein, Also Known as Murray J. Stein, Deceased. Julie Stein, Respondent. [MAJORITY] Decree of the Surrogate’s Court of Kings county, settling the accounts of the administratrix, modified (1) by striking therefrom the provision surcharging the administratrix with the sum of $350; (2) by striking therefrom the provisions for commissions, $60.45, and for counsel •fees, $100, and (3) by reducing from $332.94 to $143.39 the amount to be paid to Julie Stein on account of her allowed claim and interest; and as so modified, unanimously affirmed, without costs. We are of opinion (a) that the surcharge of $350 was erroneous as such amount was received by Etta Rosenson (later administratrix) for the account of the deceased in his lifetime (Matter of McAleenan, 53 App. Div. 193; affd., 165 N. Y. 645); and (b) that in view of the small balance remaining in the estate and of other relevant circumstances, there should be no award of commissions or counsel fees. In accordance with this decision the account as readjusted will be as follows: The administratrix is charged: With amount of Schedule A-l, as originally filed.................... $1,909 95 The administratrix is credited with: The amounts not collected in Schedule B................ $700 00 With the amount of Schedule C-l, as filed............... 1,004 56 With the amount of Schedule D........................ 62 00 - 1,766 56 Leaving a balance of........................................ $143 39 payable to Julie Stein on account of her claim besides seventy-five dollars costs imposed on administratrix personally. In view of this decision, the appeal from the order denying the motion of the administratrix to resettle the decree is dismissed, without costs. Present — Lazansky, P. J., Young, Carswell, Johnston and Taylor, JJ.