90 A.D.2d 663 | N.Y. App. Div. | 1982
Appeals (1) from an order of the Surrogate’s Court of Cortland County (Mullen, S.), entered March 2, 1982, which granted petitioner Theodore Fenstermacher’s motion to stay the executors of Clair Gutchess’ estate from distributing money or property due Erlene Gutchess as legatee, devisee and beneficiary, and further dismissed respondent Dorothy McLenon’s cross motion to dismiss the petition; and (2) from an order of said court, entered March 2, 1982, which denied said respondent’s motion to vacate an earlier stay granted pending determination of the above stay or to modify it, denied the motion of the executors of Clair Gutchess’ estate also to vacate the earlier stay and permit them to pay to an escrowee the balance due Erlene Gutchess’ estate thereby relieving them of liability in that regard, and ordered instead that the balance due be paid into court and that the executors be thereby relieved of liability. Clair B. Gutchess died a resident of Cortland County on July 3,1978. His wife Erlene M. Gutchess, by the terms of his will, received one third of the estate, including real property in Florida. A few weeks later, Mrs. Gutchess allegedly retained petitioner, a New York attorney, to represent her interests against her husband’s estate both under the will and otherwise. In late July, Mrs. Gutchess moved to Florida and at petitioner’s suggestion retained Florida counsel. Mrs. Gutchess died in Florida on January 24, 1979. Thereafter, Mrs. Gutchess’ sister retained another New York counsel to protect Mrs. Gutchess’ interest in her husband’s estate. Not receiving payment for his services, petitioner filed a petition in Surrogate’s Court to fix the value of his services to Mrs. Gutchess and to direct payment thereof from the funds Mr. Gutchess’ estate owed Mrs. Gutchess under the will. Hearings were had but no determination has been reached. Subsequently, the representatives of the two estates reached a settlement wherein it was agreed that Mrs. Gutchess’ estate should be paid some $78,000 with $20,000 paid at the time of the agreement and the balance to be paid on or before July 1,1981. Prior to the final payment date, petitioner brought the instant proceeding seeking an order withholding payment of the final sum until a determination had been made fixing the value of his services. The Surrogate granted the injunctive relief and also by a second order permitted Mr. Gutchess’ executors to pay the balance of some $58,000 into court pending the final outcome of the petition. These appeals ensued: The principal issue involved is the propriety of the order directing payment of the full amount still owing Mrs. Gutchess’ estate into court. To resolve this issue, we must, of necessity, consider whether petitioner had a viable lien on the proceeds of the estate due Mrs. Gutchess for his services. From the commencement of an action or special proceeding, an attorney who appears has a lien upon his client’s claim that attaches to a determination in the client’s favor and to the resulting proceeds wherever they are (Judiciary Law, § 475). The Surrogate’s Court has the power to establish and enforce such a lien on a decree in a probate matter (Matter of Regan, 167