C. Bertrand Race v. Christina G.

Appellant seeks, under section 475 of the Judiciary Law, to have determined in the Supreme Court the amount of his attorney’s Hen upon a certified draft payable to his cfient and which is now in his possession. The agreement as to compensation is in writing. The fund upon which the Hen is claimed was obtained from the estate of the deceased husband of the cfient. The petition in this proceeding was dismissed upon the ground that the Surrogate’s Court was best fitted to determine the rights of the parties under section 231-a of the Surrogate’s Court Act. Some time subsequent to the beginning of this proceeding the cfient presented a petition in Surrogate’s Court asking that the lien be fixed there. The jurisdiction of the Surrogate’s Court under section 231-a is at least doubtful. A determination thereunder is incident to a *169settlement of an estate. The power of the Surrogate’s Court is to direct payment “ from the estate generally or from the funds in the hands of the representative belonging to any * * * distributee.” The fund here has been separated from the estate by the giving of a certified draft. Its only identity with the estate or the funds thereof is that it was obtained therefrom. The Supreme Court obtained jurisdiction prior to the filing of the petition in the Surrogate’s Court, and the appellant is entitled to a determination in the forum of his selection. It has full power to hear and determine the issues raised by the petition and the answer.

The order should be reversed, with costs, and matter remitted to the Special Term.

Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ., concur.

Order reversed on the law and facts, with costs to the appellant, and matter remitted to Special Term.