66 N.Y.S. 620 | N.Y. App. Div. | 1900
From the moving papers it appears that in January, 1895, Charles Casper & Co., a domestic corporation, executed and delivered to the petitioner, Alois L. Ernst, its promissory note for $1,500, and as collateral security for the payment of the same it assigned to him certain fire insurance policies. Thereafter the property covered by the policies was destroyed by fire, and, certain insurance companies and underwriters having failed and neglected to pay their proportionate amount of the loss, the respondent, Hawes, as attorney for this petitioner, and also as the attorney for one Ridgway (who had theretofore been appointed receiver of the corporation), brought actions against the insurance companies and underwriters. The actions were prosecuted to judgment, and some of them were thereafter satisfied by the defendants paying the amount of them to the attorney. There is no dispute between the parties but that Hawes collected the sum of $2,254.89 upon the judgments, and that he has only paid to the petitioner the sum of $1,100. Application was made to the court to compel him to pay over a portion of the balance, and he there claimed that he had a right, as attorney, to retain such balance in payment of his fees for legal services and for disbursements made by him in the prosecution of the actions. The application was denied, and Ernst has appealed.
We are of the opinion that the application should have been granted to the extent of appointing a referee to take proof of the facts'alleged in the petition and answer, and also to ascertain the precise amount, if any, which is due from this attorney to Ms client.