179 A.D. 757 | N.Y. App. Div. | 1917
This is a proceeding under section 475 of the Judiciary Law to compel an attorney to pay over moneys collected upon a judgment owned by the petitioners. The facts are somewhat unusual.
Petitioners recovered a judgment against one Siegfried Blumenkron and caused him to be examined in proceedings supplementary to execution. Upon that examination it appeared that Blumenkron had a claim against S. Blumenkron, Inc., upon which an action had been begun and was still pending. Blumenkron thereupon executed an assignment of said cause of action to plaintiffs petitioners. In the action upon said claim so assigned the respondent here was the attorney for Blumenkron, and the assignment was made “ subject to the claim and interest of Herman C. Pollack, my attorney in' said action of one-half of the recovery for his services herein.” The respondent was cognizant of this assignment, and thereafter prosecuted the action of Blumenkron against S. Blumenkron, Inc., to judgment. After the recovery of the judgment he undertook to prosecute, and did prosecute, proceedings supplementary to execution against S. Blumenkron, Inc. Just what he did in the course of these proceedings does not appear, but as a result thereof he accepted from one of the officers of the corporation, judgment debtor, the sum of $500 in satisfaction of his, said attorney’s, interest in the judgment, and assigned his interest in said judgment to said officer, at the same time delivering to said officer “ certain papers which might facilitate action by said assignee.” Just what these papers were, respondent does not disclose. He then advised the petitioners, through their attorney, that he had “ withdrawn from the case of Blumenkron v. Blumenkron and am doing nothing further in the matter.”
Reduced to its simplest terms, therefore, we have the case of an attorney employed to collect a judgment under an agreement that he shall have fifty per cent of the recovery, who collects his share, and then abandons the case and refuses to pay his client any part of what he has collected.
The transfer of the claim against S. Blumenkron, Inc., took place while the action was still pending and with the respondent’s knowledge. In continuing the action he acted thereafter in behalf of the petitioners, the real parties in interest, and thereafter owed to them the same degree of fidelity that he had owed to his original client. Under such circumstances the petitioners became entitled to all the remedies that Blumenkron, the assignor of the claim, would have enjoyed if he had not made the assignment. For this proposition there is ample authority.
In Matter of Redmond (54 App. Div. 454) this court said: “ While it is undoubtedly true that the relation of attorney and client must have existed at the time of the reception of the money by the attorney, yet it does not follow that a successor in interest from the party may not maintain a summary proceeding to compel payment over by the attorney, even though the conventional relation does not and has never existed between them. The successor in interest may, nevertheless, succeed to all of the remedies which were possessed by the original party to compel payment of the money,” and in Matter of Gillespie v. Mulholland (12 Misc. Rep. 40) the late Chief Justice Daly writing for the General Term of the Court of Common Pleas, said: “ In the present case the transfer of the claim in suit was proposed and accepted during the pendency of the action, with the knowledge of the attorney, who advised against a formal assignment being made at that time, but having notice of the intention and rights of the parties he must be held to have prosecuted the action for the benefit and on behalf of the real party in interest, the proposed assignee, and so the relation of attorney and client was thus, in a measure, created between them.”
The order appealed from, in so far as it denied petitioners’ prayer that the respondent be required to pay over $250 out of the $500 received by him, is reversed and the motion granted to that extent, with ten dollars costs and disbursements. As the attorney has not appealed, the other provisions of the order remain unaffected.
Clarke, P. J., Smith, Davis and Shearn, JJ., concurred.
Order reversed and motion granted to extent stated in opinion, with ten dollars costs and disbursements. Order to be settled on notice.