In the Matter of the Petition of Edward Friedman, an Attorney at Law, Respondent, to Have His Compensation Fixed as Attorney for the Administrator de Bonis Non of the Estate of Harry Krems, Deceased. Maurice B. Rich, as Administrator de Bonis Non of the Estate of Harry Krems, Deceased, Appellant

In the Matter of the Petition of Edward Friedman, an Attorney at Law, Respondent, to Have His Compensation Fixed as Attorney for the Administrator de Bonis Non of the Estate of Harry Krems, Deceased. Maurice B. Rich, as Administrator de Bonis Non of the Estate of Harry Krems, Deceased, Appellant. [MAJORITY] In a proceeding under section 231-a of the Surrogate’s Court Act to fix the compensation of the attorney of record in this proceeding, decree of the Surrogate’s Court of Kings county modified by striking therefrom the first, second, third and fourth decretal paragraphs thereof and by inserting therein a provision that the application of the respondent for compensation be denied. As so modified, the decree is unanimously affirmed, without costs. The question as to whether appellant is entitled to compensation in the proceeding and, if so, the amount thereof, may be determined by the surrogate in the accounting proceeding. In our opinion, the burden of proof was upon the respondent to establish the special agreement between him and the appellant, testified to by him, and he failed to sustain such burden. The evidence contained in this record shows that respondent’s designation as attorney of record and the services performed by him were a part of his duties as an employee in appellant’s law office, and he is not, therefore, entitled to compensation from the estate. Present — Young, Hagarty, Carswell, Davis and Johnston, JJ.