Majority
p. 530In the Matter of the Administration of the Estate of Alvin Lake, Deceased. Virginia Spring Lake, Appellant; Frederick S. Taggart, Respondent. First Department, March 4, 1927.
Headnote
Surrogate’s Court—counsel fees — jurisdiction of surrogate is defined by Surrogate’s Court Act, § 231-a — surrogate has no power to direct payment by individual otherwise than as stated in said section — surrogate’s power is not enlarged by Judiciary Law, § 475.The jurisdiction of a surrogate to direct a payment of counsel fees is defined by section 231-a of the Surrogate’s Court Act and he has no power to direct payment otherwise by an individual, nor is the power enlarged by section 475 of the Judiciary Law which gives him power “ to enforce the laws.’’
Appeal by Virginia Spring Lake from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 10th day of November, 1926, denying appellant’s motion for an order vacating and setting aside a certain order previously made by said court, amending an earlier order nunc pro tunc and vacating a certain execution against the property of appellant.
James G. Donovan of counsel [F. Dudley Kohler, attorney], for the appellant.
Frederick S. Taggart, respondent, in person.
The jurisdiction of the surrogate to direct payment of counsel fees is defined by section 231-a of the Surrogate's Court Abt. His power thereunder is to direct payment “ from the estate generally or from the funds in the hands of the representative
p. 531
belonging to any legatee, devisee, distributee or person interested therein.” He has no power to direct payment otherwise by any individual (Matter of Smith, 111 App. Div. 23 , 31), nor is his power enlarged by section 475 of the Judiciary Law which gives merely power to “ enforce the lien.” The order of June 16, 1926, is, therefore, void for want of jurisdiction.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.
Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and proceeding remitted to the Surrogate’s Court for further action in accordance with opinion.