144 Misc. 494 | N.Y. Sur. Ct. | 1932
This is an application by notice of motion for an order fixing the reasonable fees of the attorney who formerly represented the administrator, and for the substitution of a new attorney for the estate. There is no pending proceeding in this court in which it would be permissible to effect the substitution. The petitioner is evidently unaware that in the absence of a pending proceeding he is not obliged to ask for a substitution of attorneys, but may discharge his attorney at any time. The proceeding to fix attorney’s fees should not have been commenced by a notice of motion to the persons interested. It is just as irregular to do so as to commence an action in the Supreme Court or other forum by notice of motion, rather than by service of a summons. (Matter of Mosessohn, 145 Misc. 378.) The proper and regular procedure is to begin the proceeding by the service of a citation. (Matter of Parsons, 121 Misc. 747; affd., 208 App. Div. 769; Matter of Rabell, 175 id. 345.) If the parties cannot agree, the petitioner is directed to begin a proceeding to recover the bank book in question. At the same time the former attorney may have his fees fixed by beginning an appropriate proceeding under section 231-a of the Surrogate’s Court Act.
The motion is denied.
