12 N.Y.S. 790 | N.Y. Sup. Ct. | 1890
The papers in this case present the rather curious anomaly of two separate, distinct, and inconsistent orders being entered upon a single application, with nothing upon the face of the papers to show thát one order is intended to replace or be a resettlement of the other. This practice is one that is not to be encouraged; and, if no other reason existed, we think it would form a sufficient ground for a reversal of the order appealed from. But there are other points which seem to be fatal to the application, and these may as well be disposed of upon this appeal as at any other.time. It appears from the papers in the case that the appellant had been retained by one Edward Schell to vacate -an assessment, and subsequently to recover certain moneys paid to the mayor, etc., because of said assessment. It was claimed upon the part of the appellant that he had two distinct retainers, and that he was entitled, under such retainers, to retain the sum of 30 per cent, of the recovery. The respondent, however, claims that he was only entitled to retain 25 per cent., and that the respondent was entitled to the payment of the balance. Edward Schell assigned his claim against the appellant to one Robert Schell, who brought this proceeding against the appellant for the payment of the money, or his punishment for a contempt. We do not think that an assignee of a claim against an attorney can avail himself of this summary remedy. It is a procedure strictly between attorney and client, as is recognized in Re Knapp, 85 N. Y. 284, and by the assignment of his claim against the attorney the client cannot assign his relationship. It is a grievance personal to himself. It is because of the relations existing between attorneys- and clients that the client is allowed to pursue this extraordinary remedy; and it is because it is the duty of the court to see that the attorney acts with fidelity, as well to the court as to the client, that it assumes this jurisdiction.