
    In the Matter of the Estate of Charles Pepi, Sr., Deceased.
    Surrogate’s Court, Nassau County,
    July 28, 1965.
    
      
      Jerome H. Doran, petitioner in person. Michael Baum for respondent.
   John D. Bennett, S.

A discharged attorney for the executrix has submitted a petition to fix his fees under section 231-a of the Surrogate’s Court Act.

The executrix has demanded a jury trial as a matter of right and the petitioner has objected to same.

A proceeding under section 231-a is in equity and there is no constitutional right to a trial by jury (Matter of Pardee, 239 App. Div. 876; Matter of Shinder, 15 Misc 2d 429; Matter of Richards, 5 A D 2d 124; Matter of Davis, 10 Misc 2d 347).

The executrix relies on the holding in Matter of Garfield (14 N Y 2d 251). However that case dealt not with section 231-a but a claim by attorneys “ for work, labor and services ” completed for the testator during his lifetime. There the court held that a constitutional right to a trial by jury existed. However, here we have a claim under section 231-a and the fee, if any, which will be allowed will be an administration expense as opposed to a claim for work, labor and services performed for the testator during his lifetime. The Garfield case (supra) did not grant a trial by jury as a matter of right for one bringing on a proceeding which would be equitable in nature in all courts.

The executrix also relies on Matter of Kosch, Lewis & Reuben (253 App. Div. 919) which was a memorandum decision that held a trial by jury under a 231-a proceeding was allowed as a matter of right due to the holding in Matter of Matheson (265 N. Y. 81). This proposition was carefully reviewed by Surrogate Wither in Matter of Britton (187 Misc. 70). The Kosch case (supra) was decided on dictum found in the Matheson case (supra). It was a mere inference. Courts should ‘ ‘ regard as the expression of the court only so much of the comment in an opinion as is necessary to the decision reached ” (Matter of Hall, 183 Misc. 659, 660). The reference to a trial by jury in the Matheson case had nothing directly to do with the question before the court.

The demand for a jury trial as of right is denied, nor will the court, in its discretion, order a jury trial as a Surrogate from his training and experience is better able to decide the reasonable value of attorney’s fees quickly and inexpensively (Matter of Britton, supra).  