In dissenting from the decision about to be made I do not do so because I think the surrogate of Broome county was properly-paid the sum of $600 as a counsel fee in the action in which the respondents, the administrators of the.estate of Orson A. Van Alstine, deceased, were plaintiffs. On the contrary, he had no right to - act as counsel or to be paid any sum, and he violated the law and his oath of office in consenting to act as counsel and in receiving any pay for his services. If the money had been paid to him by the administrators I agree' that it would have been an illegal payment and that their account should be Surcharged with the amount, remitting them to their *789remedy of recovering it back from him, which they would have a right to do. The trouble about surcharging the administrators with the amount is th at they did not make the payment. It clearly was made from the one-half of the recovery which the attorney Van Oleve retained, and which under agreement with the administrators he had a right to retain. The agreement that the attorney should have one-half the recovery for his services under the circumstances disclosed, was not unconscionable, and there is no dispute that such was the agreement. Nor is there any dispute that he paid their one-half to the administrators and that they have properly accounted for it, or that the attorney Van Oleve paid the $600 to the surrogate from his own half of the recovery. Van Oleve had the right to do what he liked with his half. He could give a part or all of it to the surrogate or throw it away if he chose.
There is no proof in the record that when the administrators asked for counsel and it was suggested that the surrogate act as such, to which Van Oleve assented, there was any new bargain made about Van Oleve’s compensation, to the effect that he was to take out of his half the amount demanded by counsel and turn it over to the administrators, who were to pay counsel therewith. Nor are there any circumstances which show that such was the modified bargain.
It was simply a case of clients desiring counsel and the attorney assenting to paying him out of his contingent fee. Such a situation frequently arises.
It is true that one of the administrators suggested or insisted upon the surrogate being the counsel, doubtless not knowing that he was disqualified from acting, but that fact does not make him or his coadministrator liable to pay back into the estate the amount of the counsel fee which the surrogate was paid by Van Oleve.
It seems to me the facts do not justify a reversal of that part of the decree appealed from or the granting of any relief to the appellant. I, therefore, vote for an affirmance.
Decree so far as appealed from reversed on law and facts, without costs, and the accounts of the administrator surcharged with $600 and interest.