New York Law Review

Matter of Freeman, 34 N.Y.2d 1 (1974): Appellate Court Discretion in Awarding Counsel Fees

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Matter of Freeman, 34 N.Y.2d 1 (1974)

An appellate court does not abuse its discretion as a matter of law when it remits a case to a lower court with a direction to allow counsel fees without further specification.

Summary

This case concerns the scope of appellate court discretion in directing the award of counsel fees. The Court of Appeals held that the Appellate Division did not abuse its discretion when it remitted the case to the Surrogate’s Court with a direction to allow counsel fees, without providing further instructions. The Court also clarified the scope of review available when an appeal is taken pursuant to CPLR 5601(d), holding that such an appeal brings up for review only the prior nonfinal determination of the Appellate Division.

Facts

The specific facts underlying the dispute regarding counsel fees are not detailed in this very brief opinion. However, the core fact is that the Appellate Division, in a prior order, remitted the case to the Surrogate’s Court with a direction to allow counsel fees. The key issue was whether the Appellate Division needed to provide more specific instructions regarding the calculation or source of these fees.

Procedural History

1. The case originated in the Surrogate’s Court of Chemung County.
2. The Appellate Division issued an initial order remitting the case to the Surrogate’s Court, directing the allowance of counsel fees.
3. The Appellate Division subsequently issued a second order affirming the Surrogate Court’s decision regarding the payment of these fees from the estate’s remainder.
4. An appeal was taken to the Court of Appeals from the second Appellate Division order, seeking review of both the first and second orders.

Issue(s)

1. Whether the Appellate Division abused its discretion as a matter of law by directing the allowance of counsel fees without further specification in its initial order remitting the case to the Surrogate’s Court.
2. Whether the appeal from the second Appellate Division order, pursuant to CPLR 5601(d), allows for review of both the first and second Appellate Division orders.

Holding

1. No, because it was not an abuse of discretion as a matter of law for the Appellate Division to direct the allowance of counsel fees without further specification.

2. No, because an appeal pursuant to CPLR 5601(d) brings up for review only the prior nonfinal determination of the Appellate Division.

Court’s Reasoning

The Court of Appeals reasoned that the Appellate Division possesses discretion in directing the allowance of counsel fees. The court found no legal basis to conclude that the Appellate Division abused its discretion by not providing more specific instructions to the Surrogate’s Court. The court emphasized its limited role in reviewing discretionary decisions of the Appellate Division, intervening only when there is an abuse of discretion as a matter of law.

Regarding the scope of review under CPLR 5601(d), the Court of Appeals clarified that this provision allows for review of only the prior nonfinal determination. The court cited CPLR 5501(b) and Gilroy v. American Broadcasting Co., 46 NY2d 580 to support this interpretation. This means that the appeal could only address the initial order directing counsel fees, not the subsequent order concerning the source of payment.

The court explicitly stated that the appeal,

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