Opinion
Argued March 16, 1973
Decided May 2, 1973
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JAMES S. BROWN, J.
Seth Rubenstein, appellant in person.
Jerome I. Lessne for respondents.
MEMORANDUM. This court traditionally has exercised a very limited jurisdiction on review of allowances for legal services. To enable us to exercise even that jurisdiction requires that the record include not only a sufficient description of the services rendered but also sufficient evidence as to the value of such services. Accordingly we remand this case to Supreme Court, Kings County, for the introduction of appropriate evidence as to the value of the services for which compensation is sought and a determination de novo of the amount to be allowed.
It is not necessary or desirable in all cases to require proof of value by expert witness or affiant of a trustee's or a lawyer's services. Most such cases are determinable by criteria well-established in decisional law and by canons of professional conduct. In large and especially complicated matters the situation will be different. In this case, the Appellate Division, as well as the nisi prius court, had sufficient evidence in the record before them of the kind, quality, and difficulty of the services rendered by the substituted trustee. They had no need for the additional proof this court finds wanting, but of course the courts below have always had a large volume of similar matters to pass upon.
Moreover, in this case any failure to provide the additional proof this court would require was a failure by appellant substituted trustee. Yet he now succeeds in obtaining a reversal. Paradoxically, he is rewarded for the omission ascribed to him. Actually, appellant's affidavit of services, including an opinion as to value, was, as these things arise, rather detailed in describing the work done, the time involved, and in appending a resume of his professional qualifications.
This court has never reviewed with nicety the amount of trustee's and lawyer's fees absent an abuse of discretion. Evidently it does not propose to change its policy now but determines only that the courts below should have been dissatisfied with the record which, with their great experience, gave them no trouble.
Finally, it is commonplace law that a claimant, if qualified, may establish value of services by his own opinion (7 Am.Jur.2d, Attorneys at Law, § 268, p. 197; 7 C.J.S., Attorney and Client, § 204, p. 1121; Baruch v. Giblen, 122 Fla. 59, 64; Babbitt v. Bumpus, 73 Mich. 331, 335-336; cf. 21 N.Y. Jur., Evidence, § 457; Richardson, Evidence [9th ed.], § 384, p. 373, § 388, p. 381; Abbott, Facts [5th ed.], Value, § 1057, p. 1430; 4 Sedgwick, Damages [9th ed.], § 1303; Missouri Pacific Transp. Co. v. McDonald, 206 Ark. 270, 275). In short, on any view, including that of the majority, the record satisfies or should satisfy every standard to establish the value of the trustee's services in this case.
Accordingly, I dissent and vote to affirm.
Chief Judge FULD and Judges BURKE, GABRIELLI and JONES concur; Judge BREITEL dissents and votes to affirm in an opinion in which Judge JASEN concurs; Judge WACHTLER taking no part.
Order reversed, without costs, and matter remitted to Supreme Court, Kings County, for further proceedings in accordance with memorandum herein.