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In re Judicial Settlement of Account of Proceedings of Malone

Supreme Court of New York, Appellate Division

March 6, 1912

In the Matter of the Judicial Settlement of the Account of Proceedings of OWEN J. MALONE, as Administrator, etc., of CATHERINE GRIMES, Deceased, Respondent. THE PEOPLE OF THE STATE OF NEW YORK, Appellant; GEORGE ADDINGTON and Others, Respondents.

APPEAL by The People of the State of New York from an order of the Surrogate's Court of the county of Albany, entered in the said Surrogate's Court on the 28th day of November, 1911, denying a motion to reopen a final decree, and to vacate and modify said decree.


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Thomas Carmody, Attorney-General [Francis L. Ganley and Edward J. Mone of counsel], for the appellant.

John J. McCall, for the respondents Owen J. Malone and George Addington.

Neile F. Towner, for the respondent William S. Bristol.

Charles H. F. Reilly, for the respondent Mary Elwood.

Timothy E. Roland, respondent, in person.

John F. Brady, special guardian, respondent, in person.



Catherine Grimes died intestate at 95 Church street in a cheap old house in the city of Albany. The house belonged to her, and she occupied three poorly furnished rooms, and apparently was a poor person. Her life, so far as appears in this record, had been a quiet, uneventful one. Her death created a stir. So far as is disclosed she left no relatives in this State or country. Immediately upon her death word was sent to Owen J. Malone, an undertaker who did business near, and he repaired to the house, took possession of the same, of its contents, and the remains of Mrs. Grimes. He filed an application for appointment as her administrator upon the ground that he was a creditor prior even to the funeral. A most extravagant and inappropriate burial was made of this old lady by said Owen J. Malone, who shortly after this funeral was appointed the administrator of her estate and qualified. The total contents of the house belonging to Mrs. Grimes were inventoried by two men appointed by the surrogate for that purpose, one of whom was apparently an employee of Malone, at $21.10. It was discovered that she was the owner of five deposits in Albany savings banks aggregating $15,973.78.

Certain persons claiming to be relatives of the deceased unsuccessfully sought to establish in the Surrogate's Court their relationship. Various bills were presented against the estate, some of which were rejected, and proof concerning the same by consent was taken before the surrogate, and he passed upon the same; some of these bills were allowed at the full

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amount, some of them were reduced, and some of them not allowed at all.

The then Attorney-General had designated one Timothy E. Roland to represent the People of this State.

Certain amounts were allowed to counsel in the case by the surrogate. Certain other payments to counsel were included in the accounts of the administrator, which accounts were approved by the surrogate in his final decree.

Asserting that these bills were many of them unlawful, and not properly or sufficiently proven, that the amounts and allowances to Timothy E. Roland, the special counsel designated by the then Attorney-General, and to John J. McCall, the attorney for the administrator, and to George Addington, his prior attorney, and to one John F. Brady, who was appointed special guardian for certain infant unknown heirs at law and next of kin, were excessive, illegal and allowed without authority of law, the present Attorney-General moved upon an affidavit of his deputy to vacate and set aside the decree allowing and passing upon such account and granting such allowances. This was of course opposed by all those whose claims or allowances were thus attacked. The surrogate denied the motion, and from that denial the People of the State of New York through their Attorney-General appeal to this court.

The bill of the undertaker, Owen J. Malone, the administrator, is perhaps a fair sample of the proceedings in this estate. It is $1,326.56 by separate bill. In addition he has credited himself in his first account with $20 paid to bearers at funeral, $10 for opening grave and $25 paid St. John's Church for burial services, the items amounting to $55, making and swelling the total funeral expenses to $1,381.56. The largest items are:

'6/3 Solid mahogany casket, lined with satin, honey-combed and silk pillow, oxidized extension handles with engraved plate ..............  


'Burglar proof metallic grave vault ...................................  






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