
    Samuel R. Rosenbaum, Plaintiff, v. Harry Melnikoff et al., Defendants.
    Supreme Court, Special Term, New York County,
    November 25, 1958.
    
      Satterlee, Warfield S Stephens (F. W. H. Adams of counsel), for plaintiff.
    
      Eisman, Lee, Corn, Sheftel <& Bloch (Julius B. Sheftel, J. N. Bloch and Benjamin Altman of counsel), for defendants.
   Arou Steuer, J.

Application for an award of attorney’s fees out of a trust fund pursuant to section 1514-a of the Civil Practice Act. The section allows the court to award reasonable counsel fees where an order or decree is made in any action or proceeding which involves a will or an inter vivos trust instrument. It may be taken as conceded that the action involves the construction of an inter vivos trust.

It is a sufficient answer to this application that no order or decree has yet been made. There has been no trial and no determination. Admittedly, only a portion of the services that will be required have been performed. The conditions under which the discretion of the court to award fees can be exercised have not materialized.

This is not a technical resolution of the application. The bulk of the services rendered to date have nothing to do with the construction of the instrument. They have been directed to defeating the action on the ground that another action is pending for the same relief. It is, at least, doubtful whether in enacting the section services of this character were intended to be included. Moreover, many of the factors which determine the value of services cannot be determined at this stage of the proceedings. Nothing in the section leads to the belief that contrary to its wording piecemeal applications for fees are to be entertained.

Contention is made that the defendants making the application are not in a position to pay for the costly services made necessary by this action. But in the absence of statute they would have no relief and the only relief they can look to is that provided, which as seen, is not available at this state of the proceedings.

Motion denied.  