I do not take exception to the excellent analysis of this matter by my colleague, Mr. Justice Silverman. However, I would point out that the specific material issues for which there is a remand for a hearing, were not in such form presented to the Surrogate, and, therefore, at the time it was sufficient for the Surrogate to ask whether either of the parties wanted further testimony. When the parties are satisfied that oral testimony is unnecessary, the court does not have any reason to request it until a specific issue is encountered which may need further development.
Further, it is not every situation that raises a conflict of interest. Of course, one cannot serve two masters (Matthew 6:24) but if a lawyer may represent both the husband and wife in a separation settlement (Levine v Levine, 56 NY2d 42) it may be that appellant Duffy could have proceeded as he did in the peculiar circumstances of this matter, inasmuch as the alleged impingement on the rights of his ward was exceedingly remote. However, this will be further explored at the evidentiary hearing, which this court has directed.
Sandler, Lynch and Milonas, JJ., concur with Silverman, J.; Kupferman, J. P., concurs in an opinion.
Order, Surrogate’s Court, New York County, entered on May 7, 1982, unanimously reversed, on the law, without costs and without disbursements, and the matter is remanded for an evidentiary hearing on the material issues of fact.