In re the Accounting of the Public Administrator , 127 N.Y.S.2d 770 ( 1953 )

Rubenstein, S.

Claimant, a funeral director, applied to the Public Administrator for leave to bury intestate’s remains. Such authority was granted upon condition that the cost of such burial would not exceed $300. Claimant then made known to the administrator that a satisfactory burial could not be had for such amount due to the existence of special circumstances. Upon being apprised thereof, the administrator increased the burial allowance to $585 and claimant proceeded with the services. He now claims that he underestimated the reasonable cost of such services and seeks to recover from the administrator an additional sum of $362.52 for such purpose.

Upon the proof, the court is required to find, and so concludes, that the price agreed upon was $585 for all burial services to be rendered, and claimant may not have any recovery herein. It is unfortunate that claimant underestimated the cost of the services to be performed but this court may not, because of equitable powers vested in it, change the expressed agreement of the parties so as to permit a recovery for quantum meruit.

There are other reasons why the claim may not bo allowed. Claimant, with full knowledge of the limitations placed upon his authority, having expended more than the sum permitted, is a volunteer as to such excess payment (Matter of Cammarinese, 199 Misc. 831). Additionally, intestate’s very small estate does not permit the expenditure for burial purposes of any sum in excess of the amount allowed by the administrator.

The objections are dismissed and the claim is disallowed.

Proceed accordingly.