132 N.Y.S. 1063 | N.Y. App. Div. | 1911
This proceeding was instituted for the purpose of compelling the appellants, attorneys and counselors of this court, to pay the respondent the sum of $6,000. When the matter came before the Special Term an order was made, from which the appeal is taken, sending the same to a referee to take proof and report with his opinion with reference thereto. A brief consideration of the facts involved in, or connected with the claim made by the respondent will demonstrate that the order appealed from cannot be permitted to stand.
In January, 1901, the New York Phonograph Company commenced a suit in the United States Circuit Court for the Southern District of New York against Thomas A. Edison and others, to restrain them from selling phonographs and supplies in the State of New York, in violation of certain alleged contract rights. This suit, after considerable litigation, resulted, in January, 1905, in a decree in favor of the plaintiff directing an accounting, which was affirmed on appeal. The appellants were solicitors of record for the plaintiff in that suit under a written agreement which continued until the litigation was finally terminated by a settlement. In March, 1905, there were also pending in the New York Supreme Court some 400
Upon the foregoing facts I am clearly of the opinion that the court had no power to summarily direct, by order, the payment of the amount claimed, or to appoint a referee to take proof and report with his opinion with reference to such payment. Before the court can enforce payment by an attorney by an order in a summary proceeding, two things must appear, first, that the relation of attorney and client existed; and, second, that while such relation existed, the attorney received money or property belonging to the client which he had failed to pay over or account for.
In Matter of Hillebrandt (33 App. Div. 191) the rule is tersely stated as follows: “ Summary proceedings of this character are not sustained, except upon clear proof that the relation of attorney at law and client existed, and that an attorney at law had received the money of the property of a client while acting in this professional capacity, and had failed to account for it to the client. ”
This rule is quoted with approval in Taylor v. Long Island R. R. Co. (38 App. Div. 595). . There are numerous authorities to the same effect (Matter of Cattus, 42 App. Div. 134; Matter of Dailey v. Wellbrock, 65 id. 523; Matter of Hirshbach, 72 id. 79), and the burden of showing such facts is upon the petitioner. (Matter of Knapp, 85 N. Y. 284.)
Apply this rule to the facts not in dispute in the record before us and the reason why the order should not have been made becomes clear. The relation of attorney at law and client did not exist between the respondent and the appellants at the time the settlement was made. The appellants were never retained by the respondent. It never agreed to pay them' for services rendered and Were under no legal obligation to do so. They were retained by Andem upon his agreement to pay and the only moneys received by them were paid by Andem out of his share of the settlement. One' does not forfeit any of his rights by becoming an attorney at law. He has the same rights thereafter that other persons have, which includes the right
The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.