In re Hess — 133 A.D. 654

Majority

p. 654

In the Matter of the Application of Henry Hess, Jr., Sole Surviving Executor and Trustee under the Last Will and Testament of Casper Hirtler, Deceased, Respondent, for an Order Directing George Finck and Others, Copartners, under the Firm Name of Finck, Embree & Cobb, Appellants, to Repay Money.

First Department,

July 13, 1909.

Headnote

Attorney and client — court — summary jurisdiction ovér attorneys — when not exercised.

The court will not exercise its summary jurisdiction over attorneys by entertaining a. motion by .executors to compel an attorney to return counsel fees voluntarily paid to him.

Appeal by George Finck and others, copartners, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 9th day of April, 1909, directing a reference.

Finck, Embree & Cobb, for the appellants.

Hector M. Hitchings of counsel [Hitchings & Palliser, attorneys], for the respondent.

Henry Hess, Jr., as sole surviving executor and trustee under the last will and testament of Casper Hirtler, deceased, on or about February 3, 1906, employed as counsel the firm of Finch, Embree & Cobb, attorneys and counselors at law. On September 1, 1906, for services rendered to August 24,1906, the appellants were paid on account of legal services the sum of $2,000. On or about the, 1st of October, 1906, the account of the executor was filed, in which this item appeared, and in November, 1906, an action was begun for the construction' of the will and for the settlement of the. executor’s account. A trial was had on September 9, 1907, and a judgment was entered on June 9, 1908, in which the petitioner was charged with $113,978.34 balance remaining in his hands, as shown by said account referred to and annexed to the complaint, with interest thereon from October 1, 1906. '

The amount of the payment of said $2,000 was thereby passed Upon and approved, and the court granted an extra allowance to the appellants of $1,000, together with costs to be taxed. In the meanwhile, and while said suit was pending, and on the 25th of July, 1907, and upon the request of the appellants, the executor paid to them on account of services rendered the sum of $1,000. As the account which had been filed and was considered, passed upon and approved in said action was only down to October 1, 1906, in the ordinary course of proceedings a supplemental account would thereafter have been filed and passed upon for transactions hád and expenses paid after the date of said account.

Subsequently the executor desired to change his attorneys and, upon consent of the appellants, an order of substitution was entered and all the papers delivered to the substituted attorneys. Thereafter a motion was made to compel the appellants to repav the $1,000 which they had received on the 25tli of July, 1907, which had been paid upon their request for payment on account for services rendered up to that time, and upon said motion an order . was entered appointing a referee to hear and determine the value of the services of said firm of Finch, Embree & Cobb in this proceeding, and their right to retain the sum of $1,000 paid to them by Henry Hess, Jr., on the 25th day of July^ 1907, from which order the said firm appeals.

p. 656

This is not a proceeding to compel an attornéy to account for moneys of the client collected for his client ánd retained by him. It is to review in a summary proceeding, under the general power claimed to.be possessed by the court to control its officers, a voluntary payment by a client from moneys in his possession to an attorney for services rendered.

While the supervisory and disciplinary power of the court over its "officers exists we. do not think that it should be exercised to the extent attempted by. the order appealed from..

The order should, therefore, be reversed, with ten dollars costs and disbursements to the appellants, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin, Laughlin and Houghton, JJ-, concurred.

Order reversed, with, ten dollars costs and disbursements, and' ■motion denied, with ten dollars costs.