City of Philadelphia v. Postal Telegraph Cable Co.

Majority

p. 387

The City of Philadelphia, Plaintiff, v. Postal Telegraph Cable Company, Respondent, Impleaded with Another; R. S. Guernsey, Appellant.

Headnote

Attorney and client—an order requiring an attorney to surrender papers amd consent to a substitution should provide for Ms compensation — a reference to pi'oper for that pu/rpose.

"Where an attorney refuses to take any steps in an action or to consent to a substitution, and his client makes a summary application to remove him and to compel him to surrender all papers in the action, it is improper for the court to grant an order requiring him to consent to a substitution in all actions in which he is such client’s attorney of record, and to deliver up all papers therein upon demand, without providing for the settlement of all matters between the attorney and the client and for determining the amount due to the attorney and for the payment of that sum.

In such a case the court is authorized to send the matter to a referee, to the end that the amount due to the attorney from the client may he determined.

Appeal by B. S. Guernsey, the attorney for the defendant, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1895, requiring him to consent to the substitution of another attorney for the defendant in all actions in which he is such defendant’s attorney of record, and to deliver up all papers therein upon demand.

R. S. Guernsey, appellant, in person.

Williarfb W. GooJc, for the respondent.

As Guernsey refused to take any steps or consent to a substitution in the action in which this motion was made, it is quite probable that had the order simply directed a substitution in that action, this court would not have interfered to modify its terms. (Tuck v. Manning, 53 Hun, 455 .) But it went further and required Guernsey to dissolve his connection with the defendant in all actions in which he was its attorney, and give up the papers in those actions upon which he had a lien for his services. (McKibbin v. Nafis, 76 Hun, 344 .) When the court undertook to do that it should have provided for the settlement of all matters between the attorney and his client and for fixing the amount due to him and for its payment, because he would have lost his lien and thus have been deprived of a right which, as to these cases at least, he had done nothing to forfeit. (McKibbin v. Nafis, supra.) Where the client has made a summary application to remove his attorney this court has the power to send it to a referee to fix his compensation. (Ackerman, v. Ackerman, 14 Abb. Pr. 230 ; Dimick v. Cooley, 3 Civ. Proc. Rep. 141, 151.) This is a proper case for the exercise of that power.

The order should be modified by sending it to a referee to ascertain the amount to be paid by the defendant to the attorney for his services in the several actions, and to report to the court the testimony and his opinion thereon, without costs of appeal to either party.

If the parties cannot agree upon the referee, he will be appointed upon the settlement of this order.

Tan Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred.

Order modified as directed in opinion, without costs of appeal to either party.