
    MATTER OF HALSEY.
    
      Westchester County Surrogate's Court,
    November, 1883.
    Executor’s accounting.—Attorneys in Surrogate’s Courts.— Substitution; Power of Court.
    Surrogates’ courts have no power to prescribe the terms upon which a change of attorneys may be effected in a proceeding before them, or to determine the amount of compensation to which the retiring attorney is entitled.
    An attorney’s claim for services rendered an executrix is against her, individually, and a surrogate’s court, having control over executors and administrators only as such,'has no jurisdiction to determine the claim.
    The power conferred upon a surrogate by Code Civ. Pro. § 8481, subd. 11—“ To proceed, in all matters subject to the cognizance of his court, according to the course and practice of a court having by the common law jurisdiction of such matters”—extends only to matters which are made, by express provision of some statute, subject to his jurisdiction, the mode of its exercise only being unprovided for.
    
      It seems, that, although surrogates’ courts have become courts of record, yet they have not come to recognize “ attorneys of record none of the various petitions, citations, answers, objections, or processes, are required to be subscribed by an attorney, and, though there be an attorney, a subscription by the party suffices. A party must appear in person or. his attorney must personally appear for him; so, if he appear by one attorney on one hearing, he may appear by another on the next, and the court has no power to prevent it, but is obliged to recognize each, and permit the hearing to proceed.
    At the termination of a proceeding an allowance is made to the party for services rendered by any and all of such attorneys, as if only one had been at any time engaged in it.
    Proceedings upon the accounting of Annie M. B. Halsey, as executrix of the will of Anthony Halsey* deceased.
    After the accounting, which was litigated, had reached an advanced stage, it was announced by the attorneys, for the executrix, that she desired to substitute another attorney in their place ; that they had no objection to such substitution being made, provided their charges against her were first paid. Affidavits were submitted on their behalf tending to show that they had rendered, before the commencement of this proceeding, many and valuable legal services for her, as counsel, in and about the management of the estate, and in conducting litigation for her in other courts, besides their services rendered on this accounting ; and it was submitted to this court to determine whether it could order such substitution on condition that the executrix should pay their just charges.
    
      Hoes & Morgan, for executrix.
    
      .0. W. Peasants, for C. C. Sands, contesting creditor.
   Coffin, Surrogate.

Section 2528 of the Code provides that a party of full age, &c., may prosecute or defend a special proceeding in this court in person or by an attorney regularly admitted, &c., at his election, with certain exceptions. Section 2538 makes provision for the service of certain papers in surrogates’ courts, upon attorneys, as provided by §§ 796-802. This court being of record, and attorneys being thus authorized to practice in it, it is claimed that it is clothed with sufficient power over its suitors and their attorneys to prescribe the terms on which a change of attorneys may be effected, such as is exercised by other courts. But in attempting to do so this difficulty is encountered. Surrogates can exercise jurisdiction only over executors and administrators as such, except that it may, in a proper case, impose costs upon them personally. Here the claim of the attorneys, hitherto acting for the executrix, is against her personally, and not as executrix. If this court were, therefore, to make an order directing Mrs. Halsey, personally, and not as executrix, to pay those attorneys a certain sum of money for their services rendered, before permitting a substitution, under what provision of the Code would I find the power to compel the payment % Would not the order be a mere brulwm fulmen, except only as it might have the effect of bringing the proceeding to a halt until the condition should be complied with ? It is true that under section 2672 the surrogate is authorized, on notice, to direct the payment of funeral expenses, expenses of administration, &c.; but that section relates solely to a case of temporary administration. Nor do I think subd. 11 of § 2481, as is insisted by counsel, contains a provision broad enough to reach the case. By it a surrogate is authorized to proceed in matters not expressly provided for in the preceding subdivisions, in all matters subject to the cognizance of his court according to the course and practice of courts having, by the common law, jurisdiction of such matters. The difficulty, it seems to me, is that the compelling of the payment of a debt or obligation contracted by an executor or administrator, is nowhere made subject to the cognizance of his court. I think I can no more compel an executor to pay his attorney than I can compel him to pay a school bill contracted by him (Bulkley v. Staats, 4 Redf. 524). The phrase “subject to the cognizance of his court” means, I take it, some matter made by some express provision of statute so subject, as in the case of Tompkin v. Moseman (5 Redf. 402), where, although the statute (§ 2818) conferred upon the surrogate power to appoint a successor to á sole trustee who had died, yet failed to point out the mode of procedure in such case, who should be cited, &c., it was held that the provision contained in subdivision 11 clothed him with the power exercised by courts having, by the common law, jurisdiction in such cases. There the power was conferred, but its exercise was not indicated. Here, however, no authority is conferred upon surrogates touching the compensation of attorneys, much less the specific power, in that respect, which I am now asked to exercise. They are not “matters subject to the cognizance of this court.” A party is permitted to appear by attorney, and certain papers may be served upon the attorney; and that is all. No new power is conferred upon the surrogate, but the duty to recognize an appearance, by attorney imposed.

While this court should not shrink from the exercise of any authority with which it is plainly invested, or which may be fairly inferred, it should carefully avoid arrogating to itself such as is not sanctioned by the statutes, whose creature it is.

Although these courts have become courts of record, yet they have not yet come to recognize an ‘ ‘ attorney of record.” In the other courts, except that of a justice of the peace, formerly by the rules of practice, and now by various sections of the Code of Civil Procedure, none of which are made applicable to surrogates’ courts, attorneys are required to sign process, summons, notice of appearance, order of arrest, all. pleadings, &c. Before the adoption of our first code of practice, all pleadings in supreme court were required to be subscribed by the attorney and filed with one of the four clerks of that court, and became records thereof; and-the respective attorneys thus became the “attorneys of recordand they are still so styled, although the practice is somewhat changed; while here many of the applications and pleadings may be oral. No law of practice requires that any of the various petitions, citations, answers, objections, or process, shall be subscribed by an attorney; and if he have one, a subscription by the party suffices; nor is a mere notice of the appearance of an attorney transmitted by mail or otherwise to this court of any avail. A party must appear in person or his attorney must thus appear for him. So, I think, if he appear by one attorney on one hearing, he may appear by another on the next; and the court would have no power to prevent it, but would be obliged to recognize each, and, in either case, permit the hearing to proceed. If I am right in this, then it follows that any attorney who has been superseded in any matter must look only to his client for his proper compensation in the pending proceeding. For compensation for services rendered prior to the commencement of the pending proceedings, he would be compelled to seek it from the same source; and on the failure of the client to pay, he could pursue his remedy by an action in the proper form.

In the present proceeding, if costs shall, at its termination, be awarded, as is probable, to the executrix, she will be entitled to such costs as may be allowed in a case of contest, and such additional per Mem allowance for services rendered by any and all of her attorneys throughout the proceeding as if only one had been at any time engaged in it.

Ordered accordingly.  