Majority
p. 744In the Matter of the Estate of Graciano De Oraindi. (Supreme Court, General Term, Second Department, Filed May 12, 1890.)
Headnote
Appeal—Attorneys.An order directing an attorney to deposit moneys which he has collected for an estate pending an inquiry into a claim by the attorney to hold them for services rendered to the estate, is within the discretion of the surrogate, and is not appealable.
Appeal from order of the surrogate of Kings county, confirming the report of a referee, and directing that appellant deposit certain moneys collected by him.
Appellant was the attorney for the administratrix of the estate, and as such had received the proceeds of a sale thereof. The surety on the administratrix’ bond, on information that she was about to leave the state, and that such proceeds were in appellant’s hands, procured an order to show cause why they should not be deposited with a trust company or the county treasurer. Appellant appeared and filed affidavits showing that he had paid over and accounted for all moneys collected by him. A reference was had, and the referee reported that plaintiff had collected the sum of $698.66; that he retained for services and disbursements, $593.66, and had paid the balance to the administratrix; that the services for which the moneys were so retained consisted in preparing the papers necessary to obtain the letters of administration, the holding of several interviews with the administratrix with a view of securing her bondsmen, the holding of various interviews with creditors and the administratrix, the preparing of papers to meet the motion to compel the administratrix to file an inventory,
p. 745
appearing at the surrogate’s court two or three times on that motion, preparing inventory and filing the same, all between October, 1888, and March, 19, 1889.
On filing the report it was, on motion, confirmed; the appellant directed to deposit the sum so retained with the Kings County Trust Company to the credit of the estate, and a reference ordered to ascertain as to what services he had rendered the estate, the value thereof, the amount of disbursements made by him, and as to what would be a fair and reasonable compensation for such services and disbursements.
King & Clement, for app'lt; J. Stewart Boss, for resp’t
This appeal was from an intermediate order made "by the surrogate of Kings county, having regard to the safety of the fund of the above-named estate pending an investigation.
The order was clearly within the discretion of the surrogate and, therefore, no appeal would lie.
No right of the attorney was impaired by the order, as it only provided for the safe custody of the estate while the claims of the creditors and the attorney could be properly adjusted.. It is clear the surrogate had jurisdiction of the subject matter and the order was discretionary. This suggestion answers the appeal and renders further comment unnecessary.
Order affirmed, with costs.
Barnard, P. J., and Dykman, J., concur.