65 A.D. 523 | N.Y. App. Div. | 1901
The appellant was the attorney of record for the plaintiff in an action brought to recover damages occasioned by negligence. He was to receive twenty-five per cent of the recovery. He employed the respondent Abram H. Dailey to act as counsel in the case, and engaged to pay him fifteen per cent of the recovery from his own allowance. The case was twice tried, the first jury disagreeing, and the verdict of the second being set aside. On appeal, the contro versy was thereafter compromised, and the sum of $21,250 was paid to the attorney in settlement. He paid the counsel the agreed fifteen per cent, retained his own ten per cent, and claims to have paid over the balance to his client.
But there is an unsettled account. due the counsel for disbursements. He says that by agreement it was arranged that he should advance to the attorney from time to time the necessary funds with which to carry on the litigation, and that the plaintiff agreed with the attorney that the amounts so advanced should be deducted from the recovery. It does not appear that any such advancements were ever made to the attorney, but the counsel claims to have paid out in legitimate disbursements, at the request of the attorney, the sum of $693.20. The plaintiff, however, executed a written agreement in relation to the subject of the disbursements. It is entitled in the
Under instructions from the plaintiff the attorney informed the counsel in writing that the bill was disputed in part at least. The sum of $384.57 was allowed and paid. Of the balance, viz., $308.63, the plaintiff required more specific items to be furnished with vouchers, as to about two-thirds of the amount, before he would pay the same, and the remaining one-third he repudiated altogether as not within the scope of the agreement. The counsel has procured an order of reference to take proof of the facts upon a summary application by him to compel the attorney to pay to him the disputed sum of $308.63, and for an injunction restraining the attorney from paying that sum to his client.
In determining the appeal taken from this order it is to be noted that the order is for informatory purposes only and not final, and it should not, therefore, be reversed unless this court reaches the conclusion that the relief sought canuot be granted in this proceeding. I do not see how such conclusion can be avoided. There is nothing to indicate a want of good faith on the appellant’s part, or that he has not paid over to his client the seventy-five per cent of the recovery, which he was bound to do, or that his client is not able and willing to pay to the counsel whatever may be due and owing when the account is ascertained and adjusted. Under such circumstances, there is no ground for the suggestion made by the learned counsel for the respondent that the court should exercise summary jurisdiction in disciplining the attorney for misconduct.
ISTor can there be said to be a lien as claimed by the respondent which can be enforced by motion. While the relation between the two lawyers may be in many respects analogous to that of attorney
The order should be reversed, and the respondent remitted to his remedy at law.
Goodrich, P. J., Bartlett, Jenks and Sewell, JJ., concurred.
Ordered reversed and proceedings dismissed, with ten dollars costs and disbursements.