In re the Accounting of Peskin , 145 N.Y.S.2d 774 ( 1954 )

McGrath, S.

The statement of the accountants in Schedule “ J ” of their account that they “ herein waive their statutory commissions ” did not constitute an irrevocable waiver thereof.

The Referee has correctly found that “ No proper proof of any agreement with respect to waiver of commissions was offered.”

This voluntary waiver of commissions being a unilateral act that involved no element of estoppel was therefore ineffectual to deprive them of compensation for their executorial acts (cf. Matter of Hopkins, 32 Hun 618, affd. 98 N. Y. 636). Consequently, their withdrawal of the statement of waiver was permissible. Commissions will be allowed to all of the executors.

The fee of the attorney for Julius, Morris and Herman Peskin is fixed and allowed in the sum of $7,000 of which he has received on account thereof the sum of $1,800.

The request to remove Leon Peskin, to charge him personally with the fees of the Referee, and the other items set forth in the notice of motion, and to charge him personally with a greater portion of the legal fee allowed to Irving I. Sternberg, Esq., is denied.

Except as modified herein, the report of the Referee is confirmed. Referee’s fees fixed.

Proceed accordingly.