26 N.Y.S. 292 | N.Y. Sup. Ct. | 1893
I have no doubt that the sum asked for by plaintiff to pay her attorneys for past services is very reasonable, and, upon the papers before me, that it would be proper, so far as the merits are concerned, to grant that part of the application. I am of opinion, however, that under the decisions in Beadleston v. Beadleston, 103 N. Y. 402, 8 N. E. 735, and McCarthy v. McCarthy, 137 N. Y. 500, 33 N. E. 550, the court has no power to grant such application. Plaintiff’s attorneys state that they are unwilling to act for plaintiff upon the pending appeal to the court of appeals unless they are paid for their past services upon the appeal taken by the plaintiff to the general term. This statement, however, does not show that it is essential that the plaintiff should pay for such past services in order that she may “further maintain or prosecute her rights.” Some other attorneys may, and doubtless will, be willing to maintain her rights upon the pending appeal to the court of appeals without the payment by her to her present attorneys of what is due to them for their past services. To adopt the view now urged upon the court by plaintiff’s attorneys would be, in my opinion, to disregard and nullify the decision of the court of appeals in the two cases above cited. The court has the power, as I understand the statute and the decisions, to make an allowance