In re the Estate of Howard , 382 N.Y.S.2d 59 ( 1976 )

Decree entered in the Surrogate’s Court, Bronx County, on May 29, 1975 awarding judgment against the plaintiff and in favor of the defendant as executor of the estate of Clotilda Howard, deceased, on his counterclaim in a transferred Civil Court action, in the sum of $2,700 plus interest, modified, on the law and the facts, so as to reduce same to the sum of $2,000 plus interest from the date of any payments exceeding said sum of $2,000 and otherwise affirmed, without costs or disbursements to either party. In November, 1973 the plaintiff, an attorney, instituted a small claims action against Alonzo E. Howard, individually, and as executor of the estate of Clotilda Howard, to recover the sum of $339 disbursements advanced by plaintiff on defendant’s behalf. The defendant counterclaimed to recover the sum of $3,000 because of the alleged excessiveness of defendant’s fee paid to him for legal services to the estate. Upon the defendant’s application, the Surrogate transferred the matter to his jurisdiction, the court being satisfied that the action at issue affects or relates to the administration of the estate of Clotilda Howard (SCPA 501). We agree with the Surrogate that the transfer was proper. The overriding issue is the claimed excessiveness of plaintiff’s fee for services rendered to the defendant as executor of the Estate. Furthermore, this court has in effect previously passed on the jurisdictional question when we denied appellant’s application for a stay of the proceedings before the Surrogate. The Surrogate’s opinion ably reviews the evidence and we are in agreement therewith except as to the reasonable value of plaintiff’s legal services rendered to the executor fixed by the Surrogate at $1,800. We feel the fair &nd reasonable value to be $2,500 and that defendant should therefore have judgment for $2,000 instead of $2,700. Concur—Lupiano, Capozzoli and Nunez, JJ.; Markewich, J. P., and Murphy, J., dissent in the following memorandum by Murphy, J.: