In re the Estate of Fagan

8 Misc. 2d 1029, 167 N.Y.S.2d 272, 1957 N.Y. Misc. LEXIS 2259

• Court: New York Surrogate's Court
• Decided: November 1, 1957
• Status: Published

Opinion

John D. Bennett, S.

A notice of motion seeking “ an order fixing an additional counsel fee ” has been made by the executors, who are also the attorneys for the estate.

Presently pending before the court is the judicial settlement of the account which was restored to the calendar by order of this court.

The proceeding to fix attorneys’ fees “ shall be instituted by petition” (Surrogate’s Ct. Act, § 231-a). It has been held improper to begin such a proceeding by notice of motion (Matter of Dix, 144 Misc. 494 and cf. Matter of Gerard, 154 N. Y. S. 2d 538).

Disregarding the improper form of procedure, the court is constrained to hold such application premature. Section 231-a of the Surrogate’s Court Act does not contemplate unnecessary piecemeal applications for attorneys’ fees (Matter of Rosenblum, 137 N. Y. S. 2d 481, 484).

The executors and the attorney for the widow appear to have resolved all the obstacles to the consummation of an informal settlement of this estate. If, however, such is not the case, and a final judicial accounting is necessary, the court will at that time consider the question of additional attorneys’ fees.

The motion is denied without prejudice at this time.

Submit order on five days’ notice.