DeLamater v. McCaskie, 4 Dem. Sur. 549

DeLamater v. McCaskie

4 Dem. Sur. 549 | N.Y. Sur. Ct. | 1886

The Surrogate.

I have, in my time, had many strange cases submitted to me, but this is, in some respects the most remarkable that has come within my experience. Mr. McCaskie is a young man who, as it is understood, has been admitted to the bar within six months past and since the alleged arrangement was made, and yet he seeks to claim an amount for certain services rendered, which the most eminent lawyer at the bar, in this State, would scarce have the audacity to charge. The services for which this compensation is sought are, within the knowledge of the court, mainly derived from the papers in the case. There Avas no contest. There Avas no occasion for any extraordinary labor, and none was performed. A petition for the probate was presented, citations were issued and served on the proper parties, proof of due service was made, and on the return *552day the will was admitted to probate on proofs chiefly prepared by a person other than McCaskie, and there the services ended, for which he seeks to recover five thousand dollars ! 1 regret that such a mistake should be made in the outset of a professional career, which should be honorable and useful, and crowned with that measure of success which follows intelligent and patient industry and fair dealing.

I am not at liberty to receive any counter affidavit from the executrix, but the mere assertion of such a contract as is alleged exceeds belief. Had the executrix agreed to pay any such sum for such services, she would, by that act, have shown herself incompetent to discharge the duties of the office to wdiich she was appointed. Had she paid the sum, and credited herself therewith, it would be stricken out on the accounting, and a reasonable amount substi■tuted.

His counsel claims that, inasmuch as an answer has been interposed under the provisions of § 2710 of the Code, as amended in 1881, all that remains to the court is to dismiss the proceeding, because that answer alleges that McCaskie has an attorney’s lien upon the property to the extent of the $5,000 he was to receive for his services. The statute says that, in case- the person cited shall file an answer “ that he is entitled to the possession thereof by virtue of any lien thereon,” the Surrogate shall dismiss the proceeding. There is no allegation in the answer that he is entitled to the possession of any of the property in controversy. This is material. If the *553property were wrongfully obtained, he is not entitled to the possession as against the executrix, and there can be no lien based upon a tortious possession. The property he holds consists of railroad bonds and stocks, promissory notes, bank stocks, coupons, etc. It is difficult to understand how the possession of such property, by an attorney, should be acquired or needed for the simple purpose of obtaining the probate of an uncontested will, any more than the possession of gold and silver plate, bank bills, a herd of cows, or a carriage and horses could be acquired and needed for such purpose. How he obtained them does not appear. It has been held (Metropolitan Trust Co. v. Rogers, 1 Dem., 365) that where, in such a case, the party claims to be entitled to the possession of the property by virtue of any lien thereon or special property therein, he must allege the facts necessary to sustain the claim. He must make out, at least, a prima facie case. When he shall have done that, so that the court can see that there is a real question as to the right of possession, the Surrogate is then, and not until then, ousted of further jurisdiction, and must dismiss the proceeding. Here it is not done.

There is another reason why the proceeding should not be dismissed. If McCaskie has a just claim for services, it is not against the decedent or his estate, but against Mary P. De Lamater individually. The property in question is not hers. It belongs to the estate of Havens. How, then, can he have a lien upon the property of others for a debt which, he claims, she contracted ?

*554The examination of McCaskie will, therefore, be proceeded with, unless he shall deliver up the property, the possession of which he admits; in which case there will be no necessity for further action in the matter.