In re the Estate of Fantel , 13 Misc. 2d 1 ( 1958 )

John D. Bennett, S.

The applicants, the executors of this estate, seek by notice of motion the substitution of a new attorney for the estate, the fixation of the fees of the former attorney for the estate, and the delivery of all estate papers and records held by such former attorney.

There appears to be no proceeding pending in this court in which a substitution of attorneys could be effected. The petitioner is evidently unaware that in the absence of a pending proceeding he is not obliged to ask for a substitution of attorneys, but may discharge his attorney at any time. The proceeding to fix attorney’s fees should not have been commenced by a notice of motion to the persons interested. It is just as irregular to do so as to commence an action in the Supreme Court or other forum by notice of motion, rather than by service of a summons.” (Matter of Dix, 144 Misc. 494, 495; see, also, Matter of Fagan, 8 Misc 2d 1029; Matter of Rosenberg, 157 Misc. 490, 496.)

The applicants may by a section 231-a proceeding of the Surrogate’s Court Act have the fees of the former attorney for the estate fixed, thereby freeing estate papers and records held by him of any retaining lien.

Motion denied.

Submit order on five days’ notice.