Opinion
January 21, 1963
In a proceeding under section 231-a of the Surrogate's Court Act, to fix the petitioner Eisenberg's compensation as attorney for the executor of the estate of Florence Salkind, deceased, for services rendered by him on a prior appeal to this court from portions of a decree of the Surrogate's Court, Kings County, entered June 6, 1960, which admitted testatrix' will to probate and which, inter alia, awarded fees to the said Eisenberg and to the respondent Carr (as special guardian for certain infants) for their services in the probate proceeding, Robert C. Salkind, testatrix' husband, individually and as general guardian of his infant daughter, Leslie Rhonda Salkind, appeals from a decree of said court, rendered March 6, 1962, upon a written decision: (a) which awarded $1,000 to the said Eisenberg and $200 to the said Carr for their services on the prior appeal; and (b) which awarded $200 to the respondent Fisher for his services as special guardian in the present proceeding. By order of this court, dated May 10, 1961, the prior appeal (in which the said Robert C. Salkind was the appellant) was discontinued upon consent of the parties thereto. Decree of March 6, 1962 modified on the facts: (a) by amending its second decretal paragraph so as to reduce to $500 the sum awarded to petitioner Eisenberg; (b) by striking out its fourth decretal paragraph, which awarded $200 to the respondent Carr; and (c) by amending its fifth decretal paragraph so as to direct the executor to make the following payments only: $500 to Daniel Eisenberg, and $200 to Harold L. Fisher. As so modified, the decree is affirmed, with costs to all parties filing briefs, payable out of the estate. Findings of fact which may be inconsistent herewith are reversed and new findings made as indicated herein. In view of the quantum of the previous allowance to the petitioner Eisenberg in the original probate proceeding, it is our opinion that an award of $500 is sufficient to compensate him for the services rendered by him during the pendency of the prior abortive appeal. With respect to the respondent Carr, we find no statement of services rendered by him with respect to said appeal which would justify any further allowance to him on the theory that his services were of benefit to the estate. Ughetta, Acting P.J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.