Opinion
July 5, 1961
In a discovery proceeding under section 205 of the Surrogate's Court Act, the City of New York appeals from a decree of the Surrogate's Court, Kings County, dated July 15, 1960, which granted petitioner's motion to confirm the Referee's report and directed the city to pay to the administratrix the amount awarded to the decedent as compensation for the city's taking of her real property in a condemnation proceeding for the Coney Island Pollution Control Project. Decree reversed on the law, without costs, and petition dismissed. The findings of fact implicit in the Surrogate's decision are affirmed. The facts are undisputed. The city refused the administratrix' demand for payment of the condemnation award on the ground (the fact now being conceded) that decedent was indebted to the city for hospital services in an amount in excess of the amount of the condemnation award. Thereafter the administratrix brought this proceeding. In answer to the petition the city asserted that it had offset its claim for hospital services against the award, and that under the circumstances there is no decedent's estate to administer. There is no other asset in the decedent's estate. The award made in the condemnation proceeding constitutes a debt owing by the city to the decedent's estate. The Surrogate is without jurisdiction to adjudicate the payment of such debt ( Matter of Stern, 306 N.Y. 862; Matter of Wilson, 309 N.Y. 1011; cf. Matter of Trevor, 309 N.Y. 389, and the subsequent amendment to section 205 of the Surrogate's Court Act; see, also, Administrative Code of City of New York, § B15-28.0). This determination is without prejudice to proceedings for enforcement of the lien of the attorney for services rendered in the condemnation proceeding. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur. [ 23 Misc.2d 822.]