Hinman v. Devlin

57 N.Y.S. 1037 | N.Y. App. Div. | 1899

Per Curiam:

This is a proceeding for the substitution of an attorney for John Devlin in the above-entitled actions. The motion first came up before Mr. Justice Maddox at the Special Term for the hearing of motions, and, after reading the affidavits on both sides, the learned judge made an order referring the matter to a referee to take proof and report with his opinion what sum, if any, was fairly due to Mr. Graves, and directing the application to stand over for further consideration until the coming in of the referee’s report. The motion to confirm the report was subsequently noticed for the Trial Term, where Mr. Justice Maddox was then sitting, instead of being brought on at the Special Term for the hearing of motions. There was no error or impropriety in this course, however, as the application, having been partly heard on affidavits by one judge, could not well be continued before another ■—rule 26 of the General Rules of Practice does not apply under such circumstances — and the objection by the appellant to the procedure cannot be sustained.

Upon the merits, the referee must have held that there was an oral agreement between Mr. Graves and Mr. Devlin whereby the prior written contracts of the attorney were abrogated, and the ■client undertook' to pay counsel whatever his services should be reasonably worth. While this conclusion can' be upheld, our estimate of the value of the professional work performed by the respondent, as set forth in the testimony taken on the reference, is somewhat lower than that of the learned referee, and we think he would be fully compensated by the present payment of $2,500. The order of substitution must, therefore, he modified by making $2,500 the sum to be paid by the appellant. The lien which it gives' to the attorney should be restricted to the papers in his hands in the two actions and should not embrace the referee’s fees. We know ■of no authority for extending such a lien- to all the real and personal property of the client involved in the pending lawsuits in ■charge of the attorney," as has been attempted here. The order will be modified also in this respect, and as modified will be affirmed, without costs to either party.

The order refusing to vacate the order of substitution is affirmed, without costs.

All concurred.

Order of substitution modified in accordance with, opinion, and as modified affirmed, without costs. ■

Order denying motion to vacate order affirmed, without' costs.