| N.Y. Sur. Ct. | Aug 12, 1963
This is a consolidated proceeding for the settlement of the account of the now deceased administratix, with which have been consolidated applications for fees for legal services rendered to an infant beneficiary by an attorney who was authorized to appear as counsel with the special guardian appointed by this court and by a second attorney who
With the issue thus narrowed, the court is confronted with the one proposition that authority to act on behalf of an infant interested in an estate in this court is confined to the special guardian or the general guardian when the latter is authorized to appear and participate in litigation on behalf of an infant ward. In the ordinary situation that proposition may be accepted as generally true but there were special circumstances existent in this case which operated to provide an exception to the rule, if so it could be described. The attorney who was authorized by order of the court to render services to the special guardian had previously acted in unrelated litigation as counsel to the infant in matters which lay beyond the issues arising in the estate of her deceased mother. It was at the express request and on the petition of the infant that the court granted her application, clothing that attorney with authority to assist the special guardian in the preparation of the case on behalf of the infant. Under these circumstances, it cannot be said that the petitioning attorney exceeded his powers or put himself in a situation in which he could only be regarded as an interloper. On the contrary, her present attorneys acknowledge an obligation on the former infant’s part to compensate the petitioner for the services which he had rendered to her. It is true that they take the position that questions as to the amount to be allowed lie outside the jurisdiction of this court. In this view of the matter they are mistaken and to the extent that the services were rendered within the compass of the authority conferred by the order of appointment and the advancement of the infant’s interest in this litigation the court has ample authority to compensate the counsel to the special guardian. (Matter of Raymond v. Davis, 248 N.Y. 67" court="NY" date_filed="1928-05-01" href="https://app.midpage.ai/document/claim-of-raymond-v-estate-of-davis-3593723?utm_source=webapp" opinion_id="3593723">248 N. Y. 67; Matter of Newins, 25 Misc 2d 756.)
The motion to dismiss the petition of the attorney who was independently engaged by the infant for the purpose of acting on her behalf at her behest in the proceeding rests upon a different foundation. It is the contention of the respondent
The motion to dismiss the petitions of the attorney appointed to act with the special guardian and the attorney who asserts an independent retainer by the respondent is denied. The matter will be placed upon the calendar for further hearing to permit the submission of proof to establish the actual value of the services rendered by each of the petitioners.