Kadel's Will, In re

• Decision Date: 20 June 1962
• Citation: 35 Misc.2d 78,229 N.Y.S.2d 895
• Parties: In re KADEL'S WILL. In the Matter of the Judicial Settlement of the Intermediate Account of Proceedings of Amanda F. Kadel as Executrix of the Last Will and Testament of John Kadel, Deceased. Surrogate's Court, Westchester County
• Court: New York Surrogate Court

Page 895

229 N.Y.S.2d 895

35 Misc.2d 78

In re KADEL'S WILL.

In the Matter of the Judicial Settlement of the Intermediate

Account of Proceedings of Amanda F. Kadel as

Executrix of the Last Will and Testament

of John Kadel, Deceased.

Surrogate's Court, Westchester County.

June 20, 1962.

Kadel, Wilson & Potts, New York City, for petitioner, by Harold Schwinger, New York City, of counsel.

J. F. Gillis, New York City, for claimant, pro se, by Kent Hazzard, Jaeger & Wilson, White Plains, Mizell Wilson, White Plains, of counsel.

HARRY G. HERMAN, Surrogate.

In this executrix accounting proceeding, a former law partner of the deceased requests that a partnership accounting be directed. The deceased, the claimant Gillis and a third lawyer were engaged in the practice of the law as partners from May, 1946 to January, 1948; the partnership was dissolved as of January 31, 1948. The decedent died on December 5, 1954, and in the intermediate account filed in October, 1955, the executrix rejected Gillis' claim, stating that he had not filed a formal claim but had indicated he might do so. After Gillis had filed his claim, the executrix interposed an answer which, in addition to various denials, asserted as an affirmative defense that the partners had employed certified public accountants who had regularly audited the law firm's books and records and had submitted financial reports covering the firm's operations, that there had been a complete settlement of the accounts among the firm partners, and that there were moneys due from Gillis to the deceased. Thereafter the claimant moved to strike the answer as sham and frivolous, and former Surrogate Dillon in an opinion dated July 8, 1960 (New York Law Journal, 7/14/60) denied the motion and stated that 'where an answer places in issue the right of a party to an accounting the issue must be determined before an accounting is directed (Wynkoop v. Wynkoop, 119 App.Div. 679 ).' See also Tooley v. Exempt Firemen's Benevolent Association of the City of Yonkers, 13 A.D.2d 685, 213 N.Y.S.2d 937 to the effect that one must first establish his right to an accounting before an accounting will be directed. The Surrogate has jurisdiction in an accounting proceeding to direct a partnership accounting as an incident to the allowance or rejection of the claim, and of the claimant's right to share as a creditor in the assets of the estate (Matter of Raymond v. Davis' Estate, 248 N.Y. 67, 161 N.E. 421). The question of jurisdiction was the subject of a prior determination by this court in this estate (Matter of Kadel's Will, 16 Misc.2d 254, 181 N.Y.S.2d 300, aff'd 9 A .D.2d 928, 196 N.Y.S.2d 568).

Upon the hearing, the claimant maintained that he had not received 'an accounting, as anticipated under law.' While admitting he had received the various accountant's reports and that he had access to the timesheets of the law partnership, he urged that the allocation of fees in unfinished legal matters pending when the partnership was...