In re Matthewson's Estate — 9 N.Y.S. 290

Majority

p. 290

In re Matthewson’s Estate.

(Surrogate's Court, New York County.

November, 1888.)

Headnote

Costs—In Surrooate’s Court—Allowance to .Freeholder's Counsel.

An allowance to a freeholder’s counsel, on a sale of a decedent’s real estate, which exhausts the fund, is not “reasonable, ” within Code Civil Proc. N. Y. § 2563, which provides that the freeholder may be allowed a reasonable sum by the surrogate for the necessary services of his counsel, as the amount recovered, though not a test of the value of the attorney’s services, is, in some degree, a proper measure of compensation, and especially when the attorney from the first was aware of the limited amount of property involved.

Application for a sale of the land of John Matthewson, deceased, for the payment of debts. See 3 N. Y. Supp. 660 .

Olin, Rives & Montgomery, for petitioner.

The Code (section 2563) provides that the freeholder may be allowed a sum deemed by the surrogate to be reasonable for the necessary services of his counsel. An allowance which exhausts the fund, and defeats the very object of the proceeding, can hardly merit the term “reasonable.” The fees of the freeholder are fixed by statute, and can only be dismissed by the surrogate. The only direction in which the reduction is possible is in respect of the sum allowed for the services of his counsel. In this proceeding counsel were aware of the amount of labor that would be involved, and should not now complain that their compensation is insufficient. They were also aware of the amount of property applicable to the payment of debts. While, therefore, the amount of recovery is not a test of the value of services of counsel, certainly, when the proceeding is virtually ex parte, and the amount of recovery possible is limited by very narrow bounds, the attorneys should not be disappointed if the amount of benefit accruing is regarded as, in some degree, a proper measure of compensation. To adjust the allowance in the manner claimed would exhaust the estate, and produce a result that should be avoided if possible, viz., a proceeding for the benefit of creditors, in which they are successful, and yet are injured, for the cost of procuring the decree would equal or exceed the amount realized, and an asset be annihilated which might

p. 291

otherwise be applied in the payment of debts. The suggestion is also pertinent that experienced counsel might have foreseen that the result of this proceeding would be worse than futile, and that circumstances might exist which would call for a condemnation of their action in advising the course . adopted. This is especially true when, as in this case, the attorneys for petitioning creditor acted as the counsel for the freeholder, and only make this application after having unsuccessfully applied for an allowance in the capacity of attorneys for the petitioner. These views are stated for the purpose of illuminating the path by which the conclusion sought is reached, viz., the definition of the word “reasonable,” as applied to the peculiar circumstances of this case. The sum of $75 is allowed for the services of counsel to the freeholder.