Seleznow v. ShubSeleznow v. Shub
This is а motion by plaintiff’s attorney, Peter G. Haberkorn, appearing in pro. per. for this purpose, for an оrder (1) fixing the amount of compensation due to said Mr. Haberkorn
The court regаrds this motion with great sympathy. Undoubtedly, if a way could be found to grant such applications, it would bе of great help to the bar. First, it would tend to prevent much future litigation and misunderstandings,, especially in the case of these contracts which are of a peculiarly fiduciary character; and, secondly, the enlarged field of supervision thus exercised by the courts over the relаtionships of attorney and client would doubtless tend to a greater feeling of security on the part of the bar and an increased confidence and respect on the pаrt of the public. The presentations of justiciable questions for decision so as to prevent future litigation, hitherto discussed by the courts as the raising of “ academic questions," brings to our attention a subject capable of great expansion to which but little consideration has so far been given. The reason is obvious. However, a beginning has been made in the legislation permitting declaratory judgments (Civ. Prac. Act, § 473; Rules Civ. Prac. rules 210 to 213), and in such seriously considerеd proposals that the Governor of the State may apply to the Court of Appеals for an opinion on the constitutionality of any legislative enactment. But the authority оver actions for declaratory judgments is vested solely in the Supreme Court. This motion can be addressed to this court only under the summary powers exercised by the courts over the aсts and to prescribe the conduct of attorneys as officers thereof. I find nothing and am rеferred to no decision which authorizes this court to act summarily merely for the purpose of preventative justice.
The compensation of an attorney is governed by agrеement expressed or implied which is not restrained by law except in the causes to whiсh infants are a party appearing by guardian. (
Summary proceedings initiated by motion, such as this, are only permitted, as exceptions to this rule, for reasons of sound public policy in order to allay controversies betweеn attorney and client which threaten the actual course of litigation in its public or quasipublie aspects. For these reasons, the criminal courts must exercise a power, wide in its latitude, over the appearance, withdrawal or substitution of attorneys in criminal causes. Likewise, if the withdrawal of an attorney in the midst of litigation or in the progress of a trial servеs improperly to impede, delay or obstruct justice, the court may of its own motion prоceed summarily against him as for a contempt. (Hotel Astor v. Gross,
Briefly, these applications for summary relief, which are determined on affidavit evidence, examination of witnesses before the court or a reference, can be resorted tо only to quiet collateral controversies impeding the progress of the main stream оf the litigation. This is not the situation here. The plaintiff has received due notice to retain another attorney, to which he has paid no attention. This conduct may even hint an abandоnment of the litigation, which might have large consequence in reducing the amount of the attоrney’s lien. (Friedman v. Mindlin, supra.) Hence, there is neither possibility nor necessity for fixing such hen at the present.
It follоws that the attorney must bring an action and, if he wishes his right or legal relations to be declared, hе probably will have to avail himself of any claim he may be able to present to the Supreme Court for a declaratory judgment. The motion must be denied. Order signed.