In re the Estate of Moody

Jul 1, 1958
Versions:6 A.D.2d 861
176 N.Y.S.2d 1
1958 N.Y. App. Div. LEXIS 5300

Order appealed from unanimously modified, with costs to the appellant, to the extent of directing a joint hearing in the Supreme Court for the fixation of the reasonable compensation to be awarded to the retiring attorney. It appears that the legal services provided by the retiring attorney for the estate and for the corporations are so coincidental as to render it difficult to ascertain any clear distinction. Moreover, while certain corporate legal services were performed, the corporations were wholly owned by the decedent and their assets are included in the estate. The Supreme Court has concurrent jurisdiction with the Surrogate’s Court (Matter of Matheson, 265 N. Y. 81; Noll v. Ruprecht, 256 App. Div. 926, affd. 282 N. Y. 598). But in the absence of special circumstances or where the Surrogate has already acted, the Supreme Court has exercised its concurrent jurisdiction sparingly (Crempa v. Oakley, 9 Misc 2d 583). In this case, while the Surrogate has impressed a lien upon the assets of the estate in favor of the retiring attorney, no further action has been taken or requested before the Surrogate to fix compensation pursuant to section 475 of the Judiciary Law or section 231-a of the Surrogate’s Court Act. Since the legal services rendered to the estate and to the corporations are so closely paralleled and since the Supreme Court has already ordered a hearing to determine the compensation to be awarded to the retiring attorney for his corporate legal services, there appear to be sufficient special circumstances for the Supreme Court to exercise concurrent jurisdiction. Orderly and expeditious procedure indicates that there should be a joint hearing. Settle order. Concur—Breitel, J. P., Valente, Stevens and Bergan, JJ.