
    In the Matter of the Estate of Samuel Seigel, Deceased. Lewis J. Sims, Respondent; Stewart T. Schantz, Appellant.
    [794 NYS2d 905]
   In a proceeding pursuant to SCEA 2110 to fix an attorney’s fee, Stewart T. Schantz appeals (1), as limited by his brief, from so much of a decree of the Surrogate’s Court, Dutchess County (Pagones, S.), dated July 24, 2003, as confirmed a referee’s report recommending that his fee be fixed in the principal sum of only $22,833.34, and (2) an order of the same court dated November 3, 2003.

Ordered that the appeal from the order is dismissed as abandoned; and it is further,

Ordered that the decree is affirmed insofar as appealed from; and it is further,

Ordered that Lewis J. Sims, as executor, is awarded one bill of costs payable by the appellant personally.

The appellant contends that the Surrogate’s Court erred in precluding evidence relevant to the sale by the estate of certain real property at a hearing to determine the reasonable value of his legal services. However, this issue was resolved on a prior appeal when we concluded that “[a]n increase in the value of property which was already in the possession of the estate when the petitioner consulted the appellant does not constitute a recovery” (Matter of Seigel, 300 AD2d 668, 669 [2002]). In doing so, we rejected the appellant’s argument that the retainer agreement contemplated a contingency fee based upon the value or sales price of the property in question. Schmidt, J.P., Santucci, Spolzino and Lifson, JJ., concur.  