The surrogate acted as counsel in the prosecution of the claim which the estate had for the killing of the intestate and has received therefor $600. This was in direct violation of section 2495 of the Code of Civil Procedure, which prohibits a surrogate from acting as counsel in any action for or against an estate over whom or whose accounts he could have any jurisdiction by law. The surrogate granted the original letters of administration which enabled the estate to bring the action, but when the accounts of the administrators came before him for settlement, he had disqualified himself to act by reason of his haxing acted as counsel for the estate and the accounts were, therefore, settled before the district attorney,, acting as surrogate. Of course, the surrogate has received $600 which he had no legal right to receive, and the inference arises that if he had not received it, it would have remained with the estate. It is unnecessary to characterize the transaction. It speaks for itself, and., in a sense, there is a shadow upon the case made by the administrator attempting to sustain his accounts.
After the intestate’s death Baker called upon the surrogate and obtained letters of administration. He recited the circumstances of the death and asked the judgment of the surrogate, who suggested that a certain attorney across the hall be employed. The administrator had known the surrogate for years but did not know the attorney. The surrogate took the administrator across the hall, introduced him to the attorney and they stated the facts and circumstances of the case. It *787is not quite clear that the surrogate was present at all this conference, or how much part he took in it. At sometime before suit brought it was agreed between Baker and the attorney that he should have for his compensation one-third of the recovery if settled, one-half if litigated. Evidently the administrator talked with the surrogate about the case at different times and he could not tell when the surrogate came into the case, but knew that he was in the case at his request.
The amount of the recovery was $4,413.21, which sum was paid to the attorney in satisfaction of the judgment, and he deposited it in his bank account and from the proceeds paid the disbursements, $260.47; paid to the administrator $2,076.37 less $150, which he had advanced him as a loan; paid the surrogate $600 and retained the balance. The action was tried three times, appealed to the Appellate Division three times and to the Court of Appeals once.
The facts are so peculiar, the action of the surrogate so extraordinary, that it leaves ground for the impression that he was interested in the litigation from the beginning or that the agreement as to the compensation of the attorney was made in some way in part for his benefit. If the administrator wanted the surrogate to act as counsel in the case it is not natural that the attorney should be willing to pay him out of his half, unless the fact that the surrogate furnished the case to the attorney, or that there was some tacit or implied understanding that the surrogate was not to lose by the retainer of the attorney. The attorney claims no part of this $600 and he retained half of the recovery, less $600. If there was an agreement originally that he was to have one-half and the surrogate was not directly or indirectly to be benefited by that agreement, we may assume that later the agreement was modified and that the parties received for the services in the end the sum the understanding of the parties contemplated they should have.
We may infer that perhaps the attorney and the administrator did not at the time know that they were parties to an illegal transaction. They, nevertheless, were such parties and we must view their evidence accordingly and assume that each has given the most favorable version of the transaction that could be given.
*788We are not required to draw inferences or find excuses for the parties; justice requires that the facts rather than the mouths of the participants in this illegal action should spealc. The facts show that $600 received from the recovery has been paid illegally to the surrogate for the- services rendered to the administrator. Justice and due administration of law require that the money should be returned to the estate.
I, therefore, favor a reversal of the decree, so far as it gives the administrators credit for said $600, and the account should be charged'with that amount and interest.
Betts, J., concurred; Smith, P. J., concurred in result in memorandum; Houghton, J., dissented in memorandum; Lyon, J., not sitting.