In re the Estate of Levy

— In a proceeding to fix attorney’s fees pursuant to SCPA 2110, Herbert Levy appeals from a decree of the Surrogate’s Court, Kings County (Bloom, S.), dated December 29, 1986, which awarded the petitioner a fee of $1,000 and directed that it be paid by him personally.

Ordered that the decree is affirmed, with costs payable by the appellant personally.

The Surrogate awarded a legal fee of $1,000 to the petitioner. The respondent alleges that this award was improper because the petitioner was compensated by a previous decree. We disagree.

The petitioner had served as counsel to the respondent during the settling of the decedent’s estate. The respondent retained the petitioner in his two capacities: as coexecutor and as colegatee. The petitioner had been awarded legal fees as the executor’s counsel in 1984 without prejudice to collect fees as the respondent’s individual counsel (Matter of Levy, 111 AD2d 849). The instant proceeding was commenced to recover legal fees generated from services rendered to the respondent in his individual capacity. When a party appears in several capacities, a previous action will not bar another brought in a different capacity (Siegel, NY Prac § 459, at 607).

The respondent also claims that because the petitioner was discharged for cause, it cannot claim fees due (Crowley v Wolf, 281 NY 59). However, there is no support in the record for any finding other than that the petitioner’s services were terminated without cause. The setting of $1,000 as the value of the services was not an abuse of the Surrogate’s discretion. Mangano, J. P., Thompson, Lawrence and Eiber, JJ., concur.