Opinion
April 3, 1959
Hendon Hendon for petitioner.
Simon Katz for Harry Sena.
By order to show cause, the petitioner seeks an order under section 137 of the Surrogate's Court Act compelling the respondent, an attorney, to produce a will of the decedent. The order was served on the respondent on March 19, 1959. On the return day, an affidavit submitted by an associate alleged that the respondent had left on the S.S. Homeric, and was expected to return during the middle of April. The affidavit admits the possession of the will by respondent, but asserts an attorney's lien. However, this argument has been effectually disposed of in Matter of Reiss ( 200 Misc. 697, 699) where in a well-reasoned decision, the assertion of an attorney's retaining lien under similar circumstances was held to be against public policy: "Respondent is asserting his lien, not against his client, who is dead, nor against petitioner, who does not seek possession thereof, but against the court. Petitioner is not liable to respondent for his fee; the estate is. The only way respondent may be compensated is by filing a claim with the legal representative of his client's estate when appointed. His conduct is blocking that very condition precedent to the satisfaction of his claim. Respondent's retaining lien must yield to the public policy of the State requiring the filing of wills of deceased persons." (See, also, Matter of French, 202 Misc. 735.)
The respondent is directed to file the will in his possession within 10 days of the service of a copy of the order to be signed hereon.
Submit order.