In re the Estate of Pepi

A discharged attorney for the executrix has submitted a petition to fix his fees under section 231-a of the Surrogate’s Court Act.

The executrix has demanded a jury trial as a matter of right and the petitioner has objected to same.

A proceeding under section 231-a is in equity and there is no constitutional right to a trial by jury (Matter of Pardee, 239 App. Div. 876 ; Matter of Shinder, 15 Misc 2d 429 ; Matter of Richards, 5 A D 2d 124 ; Matter of Davis, 10 Misc 2d 347 ).

The executrix relies on the holding in Matter of Garfield ( 14 N Y 2d 251 ). However that case dealt not with section 231-a but a claim by attorneys “ for work, labor and services ” completed for the testator during his lifetime. There the court held that a constitutional right to a trial by jury existed. However, here we have a claim under section 231-a and the fee, if any, which will be allowed will be an administration expense as opposed to a claim for work, labor and services performed for the testator during his lifetime. The Garfield case (supra) did not grant a trial by jury as a matter of right for one bringing on a proceeding which would be equitable in nature in all courts.

The executrix also relies on Matter of Kosch, Lewis & Reuben ( 253 App. Div. 919 ) which was a memorandum decision that held a trial by jury under a 231-a proceeding was allowed as a matter of right due to the holding in Matter of Matheson ( 265 N. Y. 81 ). This proposition was carefully reviewed by Surrogate Wither in Matter of Britton ( 187 Misc. 70 ). The Kosch case (supra) was decided on dictum found in the Matheson case (supra). It was a mere inference. Courts should ‘ ‘ regard as the expression of the court only so much of the comment in an opinion as is necessary to the decision reached ” (Matter of Hall, 183 Misc. 659 , 660). The reference to a trial by jury in the Matheson case had nothing directly to do with the question before the court.

The demand for a jury trial as of right is denied, nor will the court, in its discretion, order a jury trial as a Surrogate from his training and experience is better able to decide the reasonable value of attorney’s fees quickly and inexpensively (Matter of Britton, supra).