In re the Estate of Fagan

John D. Bennett, S.

A notice of motion seeking “ an order fixing an additional counsel fee ” has been made by the executors, who are also the attorneys for the estate.

Presently pending before the court is the judicial settlement of the account which was restored to the calendar by order of this court.

The proceeding to fix attorneys’ fees “ shall be instituted by petition” (Surrogate’s Ct. Act, § 231-a). It has been held improper to begin such a proceeding by notice of motion (Matter of Dix, 144 Misc. 494 and cf. Matter of Gerard, 154 N. Y. S. 2d 538).

Disregarding the improper form of…