55 A.D.2d 914 | N.Y. App. Div. | 1977
In an accounting proceeding, petitioner appeals from (1) an order of the Surrogate’s Court, Queens County, dated May 27, 1975, which directed him, as executor, to execute and deliver deeds conveying certain parcels of real property to respondents and (2) an order of the same court, dated June 11, 1975, which denied his motion to set aside the decision after trial, which decision, inter alia, stated that the attorney’s fee would be fixed at the amount of $7,000, less certain surcharges. Orders affirmed, without costs or disbursements. The Surrogate should have allowed into evidence the testimony given by respondent Margaret Verbel at the examination before trial. She was a party to the proceeding, and, as such, her deposition may be used for any purpose by an adverse party (CPLR 3117, subd [a], par 2; Wojtas v Fifth Ave. Coach Corp., 23 AD2d 685). However, there is no indication that any of the proffered evidence would have added anything to the Surrogate’s ability to evaluate the value of appellant’s services. Thus, the error was not prejudicial. Although it appears that no order fixing the attorney’s fee has been entered, we have nevertheless reviewed the propriety of the fee of $7,000 upon our review of the order of June 11, 1975. The record reveals that in setting the attorney’s fee, the Surrogate considered all of the relevant factors: the difficulty of the questions involved; the skill required to handle the problem; the time and labor required; the lawyer’s experience, ability and reputation; the customary fee charged by the Bar for similar services; and the amount involved (see Matter of Freeman, 34 NY2d 1). He was not obligated to accept appellant’s assertion that he had spent 1,000 hours working on this case at face value, especially in view of the fact that there existed no written day-by-day record of the time spent. There were no independent factors (outside of appellant’s own testimony) to support the requested fee (see Matter of Mann, 41 AD2d 861). The cutting of the requested fee was a proper exercise of discretion and well within the mandate of SCPA 2110, which decrees that it is ultimately the court’s responsibility to decide what constitutes reasonable compensation (see Matter of Brehm, 37 AD2d 95). Moreover, there is no merit to appellant’s contention that the fact no guardian ad litem was appointed for respondent Schwenk, who was imprisoned at the time (see SCPA 402, subd 2; 103, subd 37, par [e]), rendered the proceeding jurisdictionally defective. The reinforcement of this argument, with the assertion that the power of attorney
