In re the Estate of Lauten

207 Misc. 535, 139 N.Y.S.2d 26, 1955 N.Y. Misc. LEXIS 3415

• Court: New York Surrogate's Court
• Decided: March 30, 1955
• Status: Published

Opinion

Hazleton, S.

This is an application under section 231-a of the Surrogate’s Court Act, by petitioner to be paid for his services.

The petitioner does not represent a party interested in the estate but has been acting as counsel for the former attorney for the estate who is engaged in a long, drawn out controversy with the executrix, a phase of which includes the fixing of the sum to be paid said former attorney for the estate for his services rendered.

The power of this court to determine compensation of counsel is controlled and limited by sections 231-a and 278 of the Surrogate’s Court Act, and since the compensation prayed for by petitioner does not come within the provisions of section 278, authority, if any, for this application of necessity must be found in section 231-a.

Compensation can only be granted to an attorney who represents a party having an interest in the estate unless the attorney performed services that benefited the entire estate. (Matter of Winburn, 160 Misc. 49 ; Matter of Bogstrand, 149 Misc. 356 ; Matter of Chaves, 143 Misc. 872 ; Matter of O’Brien, 146 Misc. 555.)

The former attorney for the estate, who is petitioner’s client, is not a party interested in the estate, and although petitioner has rendered services, same have not benefited the estate. If anyone is indebted to petitioner for services rendered, it would be his client, the former attorney for the estate. Hence, petitioner’s compensation cannot be fixed by this court and the application accordingly is denied.

Submit order accordingly on notice.