In re Starbuck

225 A.D. 689

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1928
• Status: Published

Opinion

Order reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The power of the surrogate to determine the compensation of an attorney for services to an estate or to its representative is limited to services rendered by section 231-a of the Surrogate’s Court Act. Since the decree in the instant case attempted to fix the compensation of the lawyers for services rendered and to be rendered, it is impossible to separate the items and to determine what amount was allowed for services rendered and what for services to be rendered. The learned surrogate, therefore, exceeded his jurisdiction, and the decree is void. The motion to set it aside should, therefore, have been granted. (Matter of Martin, 211 N. Y. 328; Matter of Lake, 219 App. Div. 530; Seaman v. Whitehead, 78 N. Y. 306; Matter of Underhill, 117 id. 471; Matter of Tuckerman, 130 Misc. 806; Matter of Harriot, 145 N. Y. 540; Matter of Putnam, 220 App. Div. 34; Matter of Silliman, 79 id. 98; affd., 175 N. Y. 513.) We are of the opinion that the appellants are not estopped. (Matter of Scrimgeour, 175 N. Y. 507.) Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ., concur.