
    Matter of the Estate of David Krakauer, Deceased.
    (Surrogate’s Court, New York County,
    January, 1901.)
    Surrogate’s Court — Substitution of executors’ attorneys cannot be enforced where there is no proceeding pending before the court.
    A surrogate has no general authority over attorneys and, therefore, where a will has been proved, the transfer tax assessed, and no other or further proceeding is pending in his court, the executors are not entitled to move for a substitution of attorneys, and for a delivery back by the existing attorneys of papers of the estate on which they claim a lien, upon condition that the executors secure them for any claim they may have for legal services rendered.
    Application on petition and notice of motion for an order substituting new attorneys for respondents, and directing said respondents to deliver to them the papers belonging to their estate now in their possession, upon security approved by the court being given by petitioners to meet any claim of respondents for legal services, in the matter of the estate.
    Wolf, Ko'hn & Ullman, for executors.
    Norman W. Kemgood, for respondents.
   Thomas, S.

The executors of the will of the decedent apply, on

a petition and notice of motion, for an order substituting new attorneys for the respondents and directing the respondents to deliver to them the papers belonging to their estate now in their possession, upon security approved by the court being given by the petitioners to meet any claim of the respondents for legal services in the matter of the estate. The respondents assert a lien on the papers for their services. No proceeding is pending in this court. The will of the decedent has been proved and no papers are specified as having reached the hands of the respondents as incident to that proceeding. A proceeding to assess the transfer tax has been concluded and it is not charged that the papers in question were delivered to the respondents solely for the purposes of that proceeding. Upon these facts this court is entirely without jurisdiction to grant the relief sought. A surrogate has no general control over attorneys and cannot either direct or protect them, except incidentally in mating orders pertinent to a proceeding pending before him. There is no proceeding pending in which a substitution of attorneys can be ordered. An order substituting one attorney for another is merely an incident in the progress of a cause, and no such order can be made by a court in which no cause is pending to which such order can relate. Rollins, S., in Matter of Hoyt, 5 Dem. 432, 445; Estate of Aaron, 7 N. Y. Supp. 735. It is no answer to this that both parties to the application request the assertion and exercise of a jurisdiction adequate to adjust their controversy. No such consent would prevent either party from asserting the invalidity of any order that might be made, either upon appeal or in resisting the enforcement of such order, and this court cannot act as a mere arbitrator. Belief must be sought, if at all, in another tribunal.

Application denied.  