157 N.Y.S. 1079 | N.Y. App. Div. | 1916
This is a summary proceeding to compel the appellant, an attorney at law, to pay over a sum of money received by him from a client in his professional capacity and wrongfully retained by the said attorney.
The attorney under a written retainer had successfully concluded a litigation in favor of his client and had collected a sum of money, and there was no question as to the amount due to the attorney under his retainer.
The attorney paid to his client a part of the money due to him, and claimed that as to the balance his client by a separate agreement had made a loan thereof to him, evidenced by a promissory note; that later, for the convenience of the client, two notes in lieu of the original had been given to him, interest upon the first note being paid at that time, and that he had subsequently made a considerable payment on one of the notes. The circumstances related clearly distinguish that case from the one at bar. We do not accept its authority for the broad proposition that the giving of a worthless check and note, protested and unpaid, and still in the hands of the client, ousts the court of its jurisdiction over the professional relations of its officer by way of summary proceeding.
In Matter of Grey (L. R. [1892] 2 Q. B. Div. 440) a judgment had been obtained by the client before the summary application was made, and the objection was taken that the latter remedy had been waived or the right to it lost. The court said: “ The true way of dealing with this case is to deal with it according to the principle which was laid down in Matter of Freston, L. R. 11 Q. B. Div. 545, and recognized and approved in Matter of Dudley, L. R. 12 Q. B. Div. 44. The principle so laid down
That casé was cited and followed in Gabriel v. Schillinger Fire Proof, etc., Co. (24 Misc. Rep. 313), where a judgment had been obtained against an attorney by his clients who had received from them a sum of money for a specific purpose which he had failed to carry out. Execution had been issued and returned unsatisfied. Nevertheless the court held that summary proceedings would lie and granted the motion to compel the return of the money, the court saying: “He is, therefore, in the position of having in his hands money which in justice should be returned to the clients, because not applied to the purpose for which he received it, and which cannot be so applied since the clients have been compelled to make the payment which he ought to have made. ”
If a judgment, the highest form of contract obligation, does not change the professional relation to that of debtor and creditor so as to bar summary proceedings, certainly the giving of a had check and note does not.
The principle upon which summary proceedings rest is stated in Bowling Green Savings Bank v. Todd (52 N. Y. 489), where Peckham, J., said: “The practice in this State has been uniform to allow an attachment where the attorney retains money in his hands that justly belongs to his clients. That the unlawful claim is made in good faith has never been held in our courts to be an answer to the proceeding. (In re Bleakley,
In the case at bar the money was received by the attorney from his client for a specific purpose. It was not used for that purpose but retained improperly by the attorney. The giving of a worthless check and note instead of relieving the attorney from the control of the court by summary proceeding was an aggravation of the offense.
The order appealed from should be affirmed, with ten dollars costs and disbursements to the respondent.
Dowling, Smith, Page and Davis, JJ., concurred.
Order affirmed, with ten dollars posts and disbursements.