In re the Estate of Pepi

New York Surrogate's Court

In re the Estate of Pepi

47 Misc. 2d 137, 261 N.Y.S.2d 803, 1965 N.Y. Misc. LEXIS 1631

CourtNew York Surrogate's Court

DecidedJuly 28, 1965

StatusPublished

Cited by1 cases

This text of 47 Misc. 2d 137 (In re the Estate of Pepi) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Pepi, 47 Misc. 2d 137, 261 N.Y.S.2d 803, 1965 N.Y. Misc. LEXIS 1631 (N.Y. Super. Ct. 1965).

Pincite

Opinion

John D. Bennett, S.

A discharged attorney for the executrix has submitted a petition to fix his fees under section 231-a of the Surrogate’s Court Act.

The executrix has demanded a jury trial as a matter of right and the petitioner has objected to same.

A proceeding under section 231-a is in equity and there is no constitutional right to a trial by jury (Matter of Pardee, 239 App. Div. 876; Matter of Shinder, 15 Misc 2d 429; Matter of Richards, 5 A D 2d 124; Matter of Davis, 10 Misc 2d 347).

The executrix relies on the holding in Matter of Garfield (14 N Y 2d 251). However that case dealt not with section 231-a but a claim by attorneys “ for work, labor and services ” completed for the testator during his lifetime. There the court held that a constitutional right to a trial by jury existed. However, here we have a claim under section 231-a and the fee, if any, which will be allowed will be an administration expense as opposed to a claim for work, labor and services performed for the testator during his lifetime. The Garfield case (supra) did not grant a trial by jury as a matter of right for one bringing on a proceeding which would be equitable in nature in all courts.

The executrix also relies on Matter of Kosch, Lewis & Reuben (253 App. Div. 919) which was a memorandum decision that held a trial by jury under a 231-a proceeding was allowed as a matter of right due to the holding in Matter of Matheson (265 N. Y. 81). This proposition was carefully reviewed by Surrogate Wither in Matter of Britton (187 Misc. 70). The Kosch case (supra) was decided on dictum found in the Matheson case (supra). It was a mere inference. Courts should ‘ ‘ regard as the expression of the court only so much of the comment in an opinion as is necessary to the decision reached ” (Matter of Hall, 183 Misc. 659, 660). The reference to a trial by jury in the Matheson case had nothing directly to do with the question before the court.

The demand for a jury trial as of right is denied, nor will the court, in its discretion, order a jury trial as a Surrogate from his training and experience is better able to decide the reasonable value of attorney’s fees quickly and inexpensively (Matter of Britton, supra).

Free access — add to your briefcase to read the full text and ask questions with AI

John D. Bennett, S.

A discharged attorney for the executrix has submitted a petition to fix his fees under section 231-a of the Surrogate’s Court Act.

The executrix has demanded a jury trial as a matter of right and the petitioner has objected to same.

A proceeding under section 231-a is in equity and there is no constitutional right to a trial by jury (Matter of Pardee, 239 App. Div. 876; Matter of Shinder, 15 Misc 2d 429; Matter of Richards, 5 A D 2d 124; Matter of Davis, 10 Misc 2d 347).

The executrix relies on the holding in Matter of Garfield (14 N Y 2d 251). However that case dealt not with section 231-a but a claim by attorneys “ for work, labor and services ” completed for the testator during his lifetime. There the court held that a constitutional right to a trial by jury existed. However, here we have a claim under section 231-a and the fee, if any, which will be allowed will be an administration expense as opposed to a claim for work, labor and services performed for the testator during his lifetime. The Garfield case (supra) did not grant a trial by jury as a matter of right for one bringing on a proceeding which would be equitable in nature in all courts.

The executrix also relies on Matter of Kosch, Lewis & Reuben (253 App. Div. 919) which was a memorandum decision that held a trial by jury under a 231-a proceeding was allowed as a matter of right due to the holding in Matter of Matheson (265 N. Y. 81). This proposition was carefully reviewed by Surrogate Wither in Matter of Britton (187 Misc. 70). The Kosch case (supra) was decided on dictum found in the Matheson case (supra). It was a mere inference. Courts should ‘ ‘ regard as the expression of the court only so much of the comment in an opinion as is necessary to the decision reached ” (Matter of Hall, 183 Misc. 659, 660). The reference to a trial by jury in the Matheson case had nothing directly to do with the question before the court.

The demand for a jury trial as of right is denied, nor will the court, in its discretion, order a jury trial as a Surrogate from his training and experience is better able to decide the reasonable value of attorney’s fees quickly and inexpensively (Matter of Britton, supra).

Cite This Page — Counsel Stack

Bluebook (online)

47 Misc. 2d 137, 261 N.Y.S.2d 803, 1965 N.Y. Misc. LEXIS 1631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-pepi-nysurct-1965.

Opinion

Related

Cite This Page — Counsel Stack