129 Misc. 793 | N.Y. Sup. Ct. | 1927
The petitioner paid respondents, as her attorneys, the sum of $4,000 on account of professional services to be rendered by them. Before these could be completed, she became dissatisfied and discharged them as her attorneys. She now seeks an order summarily directing the respondents to turn over to her what she terms “ the unearned and unexpended portion of the amount theretofore paid them.” No misconduct on the part of respondents is alleged; no ethical question is involved, nor are any facts set forth which would justify the discharge. As was said in Matter of Gross v. Vogel (196 App. Div. 358, 360): “ An attorney should not be subjected to this drastic remedy, except in a plain case where he has violated his professional duty, that is, really acted in bad faith. If the matter is one of doubtful right upon the part of the parties, the client should, I think, be left to the assertion of that right in an ordinary action.”
In Schell v. Mayor, etc. (128 N. Y. 67) our Court of Appeals said (at p. 68): “ The principle upon which this exceptional remedy in such cases is based, is the power which the court has over its own officers to prevent them from, or punish them for, committing
Indeed, nothing whatever is shown to indicate petitioner’s right to a return of the moneys paid by her. Obviously, her dismissal of her attorneys prevented their performing the very services for which they were retained. No circumstances are here present which would seem to justify the court in entertaining these proceedings. (Bowling Green Savings Bank v. Todd, 52 N. Y. 489; Matter of Knapp, 85 id. 284; Matter of H-, an Attorney, 87 id. 521; Matter of Paschal, 10 Wall. 483.)
The application is denied.