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In re Farrington

146 A.D. 590 Court Second Department, Decision date 1911-10-20 English

Delivered by Rich, J.:

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p. 590
In the Matter of the Application of William D. Farrington, an Attorney, Appellant, to Have a Lien Determined and Enforced upon the Property of Garrett S. Braisted, Respondent.
Second Department,
October 20, 1911.

Headnote

Attorney and client — attorney’s lien — failure to preserve client’s money intact — appeal.
An attorney at law holding money belonging to1 his client has an absolute right to a summary determination by the court as to the existence and the amount of his hen. It is not hecessary that he show that he has preserved the money intact; it is enough that he is ready, able and willing to account to the client.
The question as to whether an attorney has a general as well as a special lien upon the client’s money will not be determined by the Appellate Division in the first instance upon an appeal from an order of the Special Term denying an application for a determination of the lien, but the proceeding will be remitted to the Special Term with directions to proceed to a hearing and determination.
Appeal by William D. Farrington from an order of the Supreme Court, made at the Kings County .Special Term and entered in the office of the clerk of the county of Kings on the 3d day of March, 1911.
Alexander S. Bacon [Richard C. Addy with him on the brief], for the appellant.
Albert A. Wray, for the respondent.

This appeal is brought by an attorney at law from an order .denying his application for an order determining the amount of his hen upon money in his hands belonging to his client. The petition was denied upon the ground that it was not made to appear that the appellant had preserved the money intact.

An attorney with money in his hands belonging to his client has an absolute right to a summary determination by the court of the existence and amount of his lien (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 475; Matter of King, 168 N. Y. 53 ), and it is not incumbent upon him to show that

p. 591
he had preserved the money intact; it is enough if he is ready, able and willing to account to the client.

The question as to whether the" appellant has a general as well as a special lien upon the money is. to be determined upon the hearing at Special Term and not by this court in the first instance. The answer admits that the appellant has a lien upon the money, and the only controversy is as to the amount.

The order must be reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term, with directions to proceed to a hearing and determination.

Jenks, P. J., Carr and Woodward, JJ., concurred; Thomas, J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and proceeding remitted to the Special Term, with directions to proceed to a hearing and determination.

Cases cited

Statutes and regulations cited