175 A.D. 345 | N.Y. App. Div. | 1916
The appellants, two of the next of kin of the decedent, were, without opposition and at least by parity of right, appointed administratrices of the estate. Mr. Rabell, the respondent, who during the intestate’s life had professional relations to her" affairs, was retained by such persons to act as lawyer, and he did so, not only in procuring the letters, but also generally as to some matters pertaining to administration, among other things in adjusting the transfer tax. He presented a bill deemed by the representatives so considerable that they refused to pay it, whereupon he petitioned that they render and settle their accounts. Thereupon the order under review was made.
The respondent is not entitled to initiate such settlement unless he is a “ person interested in the estate or fund,” within the meaning of section 2727 of the Code of Civil Procedure. He asserts that he has such relation by reason of an attorney’s lien on the distributive shares of the two individuals who retained him. The hen would assure his right to petition, but it must be sanctioned by section 475 of the Judiciary Law, which is: “From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action, claim or counterclaim, which attaches
I suggest that the order for reference and for payment may not estop persons entitled to share in the estate unless cited. It is deemed best to reverse, without costs, the present order, and to remit the matter to the Surrogate’s Court to the end that upon proper citation, by reference or otherwise, the amount payable from the estate for the petitioner’s services be ascertained, to the end that the representatives may be ordered to pay the same.
Jenks, P. J., Stapleton and Putnam, JJ., concurred; Mills, J., concurred in the result, being of opinion that the petitioner has a lien upon the whole estate.
Order of the Surrogate’s Court of Westchester county reversed, without costs, and matter remitted to said court for further proceedings, in accord with opinion. Order to be settled before Mr. Justice Thomas.