239 A.D. 876 | N.Y. App. Div. | 1933
In a proceeding brought under section 231-a of the Surrogate’s Court Act to fix the amount of the compensation of an attorney for services rendered to an estate or to its executor or administrator, there is no absolute right to a jury trial under sections 67 and 68 of the Surrogate’s Act because the attorney has no constitutional right to the trial of the issue by a jury, as no right of action for such compensation existed in favor of the attorney against the executor or administrator as such. The present proceeding is not akin to an action to recover the value of petitioner’s services against the executors .personally; it is equitable in its nature, and-the right to a trial by jury prior to 1846 did not exist in equitable actions. All concur. Order affirmed, with ten dollars costs and disbursements. [145 Misc. 634.]
