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MATTER OF GARFIELD

14 N.Y.2d 251 (1964)

In the Matter of The Estate of John J. Garfield, Deceased. Phillips, Nizer, Benjamin, Krim & Ballon, Respondents; Roberta Garfield, as Executrix of John J. Garfield, Deceased, Appellant.

Court of Appeals of the State of New York.

Decided June 4, 1964.

Attorney(s) appearing for the Case

Sidney Elliott Cohn, Daniel W. Meyer and Ira Drogin for appellant.

Morton Freilicher, Louis Nizer and Jerome F. Wallner for respondents.

Opinion by Judge BERGAN in which Judges DYE, FULD and VAN VOORHIS concur; Judge SCILEPPI concurs in result in the following memorandum: I concur in the result but only on the basis of the facts presented here. The parties in effect waived the accounting proceeding, consenting to a trial limited to the contested claim. If the claim were sued on in the Supreme Court, the parties would be entitled to a jury trial; why not so in this case? Judge BURKE dissents in an opinion in which Chief Judge DESMOND concurs in a separate opinion.

BERGAN, J.

Decedent died May 21, 1952 leaving a widow and two young children. Letters testamentary were issued by the Surrogate of New York County to the widow July 2, 1953. The net value of the estate was $192,000. Shortly after the issuance of letters, the petitioners, a firm of lawyers, filed a claim for $50,445.15, a quarter of the net estate, for "fees including disbursements, for legal professional services...

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