In re Denike — 21 Abb. N. Cas. 289

Majority

p. 289

MATTER OF DENIKE.

N. Y . Supreme Court, First Department, General Term ;

May, 1888.

Headnote

■Surrogate's powers.] The surrogate has power to compel an accounting executor to submit to a cross-examination as to the items of his attorney’s bill of costs.

Appeal by the executor from the summons or direction of the surrogate requiring him to appear and submit to a, cross-examination as to the items of his bill of costs.

The facts are sufficiently stated in the opinion.

Henry W. Bates for appellant.

J. H. Morris for the residuary legatees, etc.

In the bill of costs of the attorney and counsel for the executor, he has charged for one hundred and six days, less two and adjournments not specified, for time occupied in the trial or hearing upon the settlement of the executor’s accounts, in preparing such accounts and preparing for the trial or hearing. The estate was neither large nor complicated, and these charges must necessarily have excited the suspicion and incredulity of the surrogate. Whether they should be allowed or not, to a very great extent, dependSd upon the exercise of his discretion, as that has been regulated under sections 2561-2 of the Code of Civil Procedure, and to guide him judiciously in the exercise of that authority he required information which could naturally be obtainéd, if it was accessible, from the attorney, concerning the foundation and justice of these charges. He might in his. discretion have disallowed them entirely, so far as no absolute legal right existed for sustaining them, or

p. 290

lie might, to secure additional information, have required a minute and circumstantial affidavit from the attorney, and in the judicious exercise of the same authority, no good reason seems to stand in the way to prevent the surrogate from requiring the attorney, as he did, to appear and submit to an oral examination concerning the correctness and justice of these charges.

The information to guide the judgment of the surrogate appeared to be necessary under the circumstances, and in the discharge of his duties he had the right and authority to require its production in one form or another, and it was for him to determine and decide which would be the most satisfactory or best furnish the information it was necessary to obtain. He adopted the course of requiring the attorney to appear and submit to an oral examination concerning these charges. Ho possible injustice could be done to the attorney by prescribing that course. On the contrary, if the charges are just it afforded him the means of exhibiting them to be of that description. It was in his interest as much as that of the estate, that the summons or the order was made by the surrogate, and ample incidental authority exists in that officer to require as much as this of the attorney and counsel claiming these allowances.

Without, therefore, considering whether this was such an order as the executor could appeal from, it is sufficient to Say that it was rightly made and it should be affirmed, with $10 costs, to be paid by the executor and the attorney personally.

Van Brunt, P. J., arid Bartlett, J., concur.