52 Misc. 2d 653 | N.Y. Sup. Ct. | 1967
This lawsuit when it was called for trial was settled. The action on behalf of the infant Lynne was settled for $47,000, that on behalf of the infant Laura for $5,000, and those on behalf of their mother and father for $3,000 and $5,000 respectively. On presentation of the compromise order the father, who is also guardian ad litem, interposed objections to the attorneys’ fees and disbursements sought in the compromise papers and also to the fees to be paid with respect to the actions on behalf of the parents. Before the court are two infants’ compromises, including the fixation of fees pursuant to section 474 of the Judiciary Law. No application under section 475 of the Judiciary Law for summary determination of the attorneys’ lien on the parents’ causes of action has been made, and in any event it is evident from the papers that a fact question exists concerning what the original agreement was and whether it was modified, which will require hearing. The court, therefore, makes no determination with respect to the fees in the parents’ actions, leaving that question to be determined iither in a plenary action or by application made at Special Term, Part I, pursuant to section 475.
It is suggested that the guardian agreed to a fee of one third at the settlement discussions, but, of course, in the last analysis the amount of the fee must be fixed by the court and any agree
With respect to disbursements, the guardian argues that the fee must be inclusive of disbursements. While it is true that the practice has grown up of fixing the fee in an infant’s case inclusive of disbursements, this is not the invariable rule (Borgia v. City of New York, 42 Misc 2d 924, affid. 20 A D 2d 851). Canon 42 of the Canons of Professional Ethics provides that “ A lawyer may not properly agree with a client that the lawyer shall pay or bear the expense of litigation ” and section 274 of the
The guardian asks that medical expenses advanced by him on behalf of Lynne totalling $521.50 and on behalf of Laura totalling $184.50 be reimbursed to him, but his affidavit does not contain the statement required by CPLR 1208 (subd. [a], par. 9) concerning reimbursement from any other source. Upon presentation of his supplemental affidavit, the requested reimbursement will be allowed.