Opinion
January 10, 1956
Harold S. Mokotoff for Bertha Present, as administratrix of the estate of Israel Present, deceased. Herman V. Traub for respondent.
In a discovery proceeding to ascertain estate assets instituted against one who acted as the attorney for the decedent during his lifetime, the attorney admitted that he held assets of this decedent consisting of records of various corporations, numerous chattel mortgages, a mortgage on real property and several other papers, which he claims a right to withhold for charges due him for his professional employment of an extended period.
While an attorney has a general possessory lien in such circumstances ( Matter of Heinsheimer, 214 N.Y. 361), nevertheless the failure to surrender decedent's assets consisting of the varied described papers might impair the value of several assets to the estate. The court should not permit the withholding of assets as a fulcrum for the payment of fees when proper security may be given to assure respondent fair compensation ( Robinson v. Rogers, 237 N.Y. 467, 473; Leviten v. Sandbank, 291 N.Y. 352, 358) and at the same time prevent loss to the estate.
After hearing the evidence, on all the proof after trial, the court determines the fair and reasonable value of such services to be in the sum of $3,000. The court directs respondent, without requiring advance payment of said sum, to surrender to the administratrix upon proper receipt therefor all of decedent's papers and securities now held by him. In lieu of the retention of such papers upon which a lien now exists, the court will impress the estate assets with a lien in the sum of $3,000 which payment should be made as soon as conveniently possible.
Settle decree on notice.