In re the Estate of Smith

143 Misc. 328, 257 N.Y.S. 495, 1932 N.Y. Misc. LEXIS 1097

Opinion

Evans, S.

This is a proceeding to determine the compensation of the petitioners as attorneys for the respondent in the successful prosecution of his claim against this estate.

The respondent objects to the jurisdiction of this court to entertain this proceeding.

A creditor whose claim is rejected by the representative of an estate has three months from the date of rejection to pursue his remedy in another court. (Surr. Ct. Act, § 211.)

Failure on the part of a creditor to bring an action on his claim within the required period automatically vests jurisdiction in this court to try and determine the claim upon judicial settlement. This was the course taken in this matter. The creditor having selected his forum I think carries with it jurisdiction to dispose of every issue incidental thereto. (Surr. Ct. Act, § 40; Matter of Regan, 167 N. Y. 338; Matter of Fitzsimons, 174 id. 15; Matter of Williams, 187 id. 286; Matter of Abruzzo, 139 Misc. 559; Matter of Raymond v. Davis, 248 N. Y. 67; Matter of Coombs, 185 App. Div. 312.) Objection to jurisdiction is, therefore, dismissed.

The compensation of the petitioners is fixed and allowed at the sum of $200 and the decree of judicial settlement may be amended accordingly.