| N.Y. App. Div. | Mar 22, 1907
In April, 1904, the respondent, as attorney for the petitioner, collected, for her from a benevolent life insurance order a claim of $8,000. In August following proceedings were begun by petition and order to show cause to compel the respondent to pay to the petitioner such money, and-$l,963.21 was paid to her, the respondent retaining the sum of $1,036.19 as his fees and disbursements. The retention of this sum was not satisfactory to the petitioner, and the proceeding resulted on the 24th day of February, 1905, in an
There is no autlioi'ity for the entry of a judgment -in a special proceeding of this character. The petitioner was a client of the respondent, an attorney of this court. He had moneys in his hands which, as attorney, he had collected for her, and upon which he had a lien for compensation for his services, measured in the absence of any specific legal agreement therefor by their fair value. "Under the provisions of section 66 of the Code of Civil Procedure, the client, this petitioner, had the right to present her petition to this court to have the amount of such compensation and lien determined. Such a proceeding, instituted by petition, is not an action but is a special proceeding, and no formal judgment can be entered thereon. ( Ward v. Ward, 67 A.D. 121" court="N.Y. App. Div." date_filed="1901-07-01" href="https://app.midpage.ai/document/ward-v-ward-5190513?utm_source=webapp" opinion_id="5190513">67 App. Div. 121.)
The Supreme Court has inherent power over its attorneys at law to compel them to deal fairly with their clients, and if an attorney has in his hands moneys belonging to the client, collected by him as such attorney, upon which he has no lien for compensation, the court will deal summarily with him and enforce its payment as for a contempt. (Matter of Bornemann, 6 A.D. 524" court="N.Y. App. Div." date_filed="1896-07-01" href="https://app.midpage.ai/document/in-re-bornemann-5180702?utm_source=webapp" opinion_id="5180702">6 App. Div. 524; Matter of Langslow, 167 N.Y. 314" court="NY" date_filed="1901-06-04" href="https://app.midpage.ai/document/matter-of-langslow-3602164?utm_source=webapp" opinion_id="3602164">167 N. Y. 314; Code Civ. Proc. §§ 14, 2266 et seq.)
Section 1228 of the Code of Civil Procedure, providing that judgment may be entered upon the report of a referee, has no application to a special proceeding instituted as this-was, notwithstanding the provisions of the order that the referee should hear and determine the matter. That section appears in chapter 11, and under
In a procéeding of this character the court must determine the controversy, and it may order a reference only for the purpose of assistance to itself in that regard. It cannot shift the whole matter to a referee. If a reference be ordered, the matter must come back to the court on the report of the referee fos* final determination, and the report may be adopted or disregarded and a different decision made on the facts. (Matter of Ney Co., 114 A.D. 467" court="N.Y. App. Div." date_filed="1906-07-12" href="https://app.midpage.ai/document/in-re-edward-ney-co-5199882?utm_source=webapp" opinion_id="5199882">114 App. Div. 467; Marshall v. Meech, 51 N.Y. 140" court="NY" date_filed="1872-09-05" href="https://app.midpage.ai/document/marshall-v--meech-3613753?utm_source=webapp" opinion_id="3613753">51 N. Y. 140.)
Such being, the proper practice of the court, the order, although in form to hear and determine, must be deemed to be the.order which the court had the tight to make and must be considered as an order to hear and report. (See McCleary v. McCleary, 30 Hun, 154; Bantes v. Brady, 8 How. Pr. 216" court="N.Y. Sup. Ct." date_filed="1853-05-15" href="https://app.midpage.ai/document/bantes-v-brady-5468143?utm_source=webapp" opinion_id="5468143">8 How. Pr. 216.) The respondent having ‘ obtained from the referee a report in his favor should have presented it to the court for confirmation instead of entering judgment thereon as was done.
It is insisted, however, that the appellant is too late in making her motion to set aside the judgment, in that she did not move within one year from its entry as prescribed by section 1282 of the Code. That section relates to the setting aside of judgments for .irregularity, and provides that such motions shall not be made after the expiration óf one year from the filing of the judgment roll. The entry of judgment herein was not an irregularity. It was a nullity because there was no authority for its entry.
We do not think the petitioner’s motion came within the provisions of the above section or within the provisions of sections 1290 or 124 of the Code. But if it did, the court has inherent power over its judgments and is not limited by the provisions of those sections (Furman v. Furman, 153 N.Y. 309" court="NY" date_filed="1897-06-15" href="https://app.midpage.ai/document/furman-v--furman-3605883?utm_source=webapp" opinion_id="3605883">153 N. Y. 309; Ladd v. Stevenson, 112 id. 325), and the present instance is a case in which that power should be exercised in the furtherance" of justice. All the facts are not before ns, but, so far as they appear, both the expenses of the
The order must be reversed, with ten' dollars costs and disbursements, and the motion to set aside the judgment granted, with ten dollars costs.
Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.