In re the Estate of Krakauer, 2 Mills Surr. 108

In re the Estate of Krakauer

2 Mills Surr. 108 | N.Y. Sur. Ct. | 1901

Thomas, S.—

The executors of the will of the decedent apply, on a petition and notice of motion, for an order substituting new attorneys for the respondents and directing the respondents to deliver to' them the papers belonging to their estate now in their possession, upon security approved by the court being given by the petitioners to meet any claim- of the respondents for legal services in the matter of the estate. The respondents assert a lien on the papers for their services. No proceeding is pending in this court. The will of the decedent has heen proved and no papers are specified as having reached' the hands of the respondents as incident to that proceeding. A proceeding to-assess the transfer tax has been concluded and *109it is not charged that the papers in question were delivered to the respondents solely for the purpose of that proceeding. Upon these facts this court is entirely without jurisdiction to grant the relief sought. A surrogate has no general control over attorneys and cannot either direct or protect them, except incidentally in making orders pertinent to a proceeding pending before him. There is no proceeding pending in which a substitution of attorneys can be ordered. An order substituting one attorney for another is merely an incident in the progress of a cause, and no such order can be made by a court in which no cause is pending to which such order can relate. Rollins, S., in Matter of Hoyt, 5 Dem. 432, 445; Estate of Aaron, 7 N. Y. Supp. 735. It is no answer to this that both parties to the application request the assertion and exercise oi a jurisdiction adequate to adjust their controversy. No such consent would prevent either party from asserting the invalidity of any order that might he made, either upon appeal or in resisting the enforcement of such order, and this court cannot act as a mere arbitrator. Relief must be sought, if at all, in another tribunal.

Application denied.