Opinion
July 1, 1969
Appeal from an order of the Surrogate's Court of St. Lawrence County which denied the application of the petitioner-executor's attorney, who is a brother of the Surrogate, for issuance by the Surrogate of a certificate of disqualification, by reason of consanguinity (Judiciary Law, § 14), upon the hearing of an application to fix attorney's fees, made in a proceeding for judicial settlement and for construction of a will. By the action of the Surrogate himself in determining all the issues except the question respecting counsel fees and in thereupon entering a decree which disposed of all the other issues and reserved that concerning counsel fees for future determination, the application for counsel fees was treated as, and in effect became a proceeding and, in consequence, one to which the attorney was and is a party. (See SCPA 2110, 2302, subd. 6; Matter of Goldowitz, 153 Misc. 182; Matter of Fitzsimons, 174 N.Y. 15; Matter of Regan, 167 N.Y. 338; Matter of Dollar, 103 Misc. 137, affd. 194 App. Div. 948, affd. 231 N.Y. 545.) Ordinarily this informal practice with respect to counsel fees should not be followed; but in this case it was warranted and has served the ends of justice. The Surrogate was, of course, disqualified. (Judiciary Law, § 14.) Adopting this view of the case, we need not pass on appellant's additional contentions, cogent as certain of them are. We perceive no occasion for the appointment of a Special Guardian, which seems to us to have been nothing less than an abdication by the Surrogate of his own clear responsibility. Order reversed, on the law and the facts, application to declare disqualified the sitting Judge of the Surrogate's Court granted, with costs to appellant payable from the estate, and case remanded to the Surrogate's Court. The Judge of the County Court of St. Lawrence County will, by separate order, be designated to act as Judge of the Surrogate's Court to hear and determine the proceeding. Gibson, P.J., Staley, Jr., Cooke and Greenblott, JJ., concur in memorandum Per Curiam; Aulisi, J., not voting.