68 N.Y.S. 527 | N.Y. App. Div. | 1901
In effect the order appealed from is an adjudication by the Surrogate’s Court that a lien existed in favor of the attorneys upon the amounts directed to be paid by the executor and trustee to the testator’s children, and that the Surrogate’s Court has power or jurisdiction to enforce that lien as between attorney and client, and also has power to vacate and set aside releases given to an executor and trustee by the distributees entitled under a decree of distribution, to an extent sufficient to discharge the lien of the attorneys upon the distributive shares of the persons whose claims were satisfied and released.
It is not controverted that at the time the decree of distribution was entered in this special proceeding, the attorneys had no lien under the provisions of section 66 of the Code of Civil Procedure. If they had any lien at all, it was only such as would be analogous to the common-law lien of an attorney upon a judgment which could not arise until after that judgment was recovered, for the value of the services rendered to the client in procuring it. We are not called upon in this case to determine whether such'a lien existed, for we are satisfied that even if it did exist, there is no jurisdiction in the Surrogate’s Court to vacate and set aside the releases or satisfaction pieces given by the distributees to the executor in this proceeding. The authority of the Surrogate’s Court was invoked by the attorneys on the ground that the instruments were executed and delivered collusively and in fraud of the attorneys’ rights; jurisdiction was invoked on the ground of fraud. We are not aware that the Surrogate’s Court has any authority to pass upon such a question as part of the defined jurisdiction, or as within its implied powers, either as enumerated in the statute or- resulting from necessity. “ The Surrogate’s Court possesses such jurisdiction only as is expressly conferred by statute, or necessarily implied from
We are unable to find where, within the conferred or implied powers of a Surrogate’s Court, a new jurisdiction arises after its power to make a decree has been exhausted. It certainly does not arise from the fact that it is a court of record. It is not, for all purposes, a court of record; it is merely such a court for the purposes of its conferred or implied jurisdiction. It does not have the same
We are, therefore, of opinion that the surrogate had no jurisdiction to make the order appealed from in this case, the effect of which is to allow the process of the Surrogate’s Court, peculiar in its nature and directed against the person of the executor, to be invoked for the satisfaction of a claim of a third party, not in existence at the time the surrogate’s jurisdiction to make a decree had ended. That the executor and trustee may be liable to the attorneys in another forum is a matter in respect of which we express no opinion now. We are satisfied, however, that the order appealed from should be reversed on the ground that the Surrogate’s Court had no jurisdiction to make it.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Yan Brunt, P. J., Rumsey and McLaughlin, JJ., concurred ; O’Brien, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.