108 N.Y. 110 | NY | 1888
The appellant is the attorney of the defendant and appeals to this court from an order of the General Term requiring him to return to the plaintiff certain moneys collected of him by said attorney as costs, under an erroneous order. From the quite imperfect statement of the facts in the case we infer that the defendant obtained an order at Special Term awarding him certain costs against the plaintiff which were paid, but upon appeal, the General Term reversed so much of the order as awarded costs, in excess of those allowed upon a motion, and ordered the defendant to repay such excess to the plaintiff within five days after service of its order. Upon application to the defendant's attorney for repayment, he, at various times, promised to repay them, but neglected to do so. Thereupon this application was made to compel such payment.
The General Term made an order requiring the attorney to make restitution of such costs, unless the same should be paid within twenty days by the defendant, or unless the attorney should make and file an affidavit that said costs had been paid over by him to his client. The defendant's attorney neglected to avail himself of the terms extended by the order, and appealed to this court for a reversal of the same. We think the order was properly made and should be enforced. It has been the uniform practice of the courts to exercise summary jurisdiction over the conduct of parties and attorneys, in actions pending in court, and enforce obedience to orders and directions made by it, in the interest of fair dealing and honesty, to protect all parties or persons whose rights have been affected by the litigation. Both parties and attorneys who, through the aid of the court, have come into possession of property or money during a litigation, which subsequent proceedings in the action show was either wrongfully acquired, or unjustly retained, may be compelled to restore it to the rightful owner by order and attachment to enforce such restoration. *113
It was held in Langley v. Warner (
In the case of Wilmerdings v. Fowler, as reported in 14 Abb. Pr. R. (N.S.) 249, and subsequently upon reargument and rehearing in 15 id. 86, and
This case fairly implies that if the money had been obtained by the fraud of the attorney, an order would be made by the court requiring the attorney to repay it regardless of the fact whether he had paid it to his client or not, and that most clearly he would be required to repay it if he had the money in his hands and had not paid it over. The appellant makes *114 the claim that this money having been received by the attorney as costs, creates a distinction between it and other cases where attorneys have been required to restore moneys erroneously obtained. We do not think that circumstance creates any valid distinction, for it is the wrongful acquisition and retention of the property of another which authorizes the court to order its restoration. We think the case of Wilmerdings v. Fowler is in point.
The order should be affirmed, with costs.
All concur.
Order affirmed.