In re the Estate of McCumiskey

14 A.D.2d 546, 218 N.Y.S.2d 73, 1961 N.Y. App. Div. LEXIS 9650

Opinion

The facts are undisputed. The city refused the administratrix’ demand for payment of the condemnation award on the ground (the fact now being conceded) that decedent was indebted to the city for hospital services in an amount in excess of the amount of the condemnation award, Thereafter the administratrix brought this proceeding. In answer to the petition the city asserted that it had offset its claim for hospital services against the award, and that under the circumstances there is no decedent’s estate to administer. There is no other asset in the decedent’s estate. The award made in the condemnation proceeding constitutes a debt owing by the city to the decedent’s estate. The Surrogate is without jurisdiction to adjudicate the payment of such debt (Matter of Stern, 306 N. Y. 862; Matter of Wilson, 309 N. Y. 1011; cf. Matter of Trevor, 309 N. Y. 389, and the subsequent amendment to section 205 of the Surrogate’s Court Act; see, also, Administrative Code of City of New York, § B15-28.0). This determination is without prejudice to proceedings for enforcement of the lien of the attorney for services rendered in the condemnation proceeding. Nolan, P. J., Beldock, TJghetta, Kleinfeld and Christ, JJ., concur. [23 Misc 2d 822.]