In re Curtis — 51 A.D. 434

Majority

p. 434

In the Matter of the Application of Theodore A. Curtis and William D. Johnson, Respondents, to Compel John F. Meyer, Attorney and Counselor at Law, Appellant, to Pay over Funds Advanced.

Headnote

Attorney and client —proceeding to compel an attorney to pay over money — a petition on information and belief, signed and verified by the petitioners’ attorney, and-not by the petitioners, when insufficient. ■

An order appointing a referee to take proof, in a proceeding instituted to compel •an attorney at law to pay over, certain funds alleged to have been received by him in a professional capacity, should not be granted upon a petition, all the material averments of which are stated to be upon information and belief, signed by a person who describes himself as “ Attorney for the Petitioners,”' and verified by him upon information and belief, the grounds of which information and belief are stated to be conversations and correspondence had with one of the petitioners, where the only reason given for the failure of the petitioners to verify the petition is that both of them are residents of the State of Connecticut.

Appeal by John F. Meyer 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 26th da,y of August, 1899, appointing a referee to take proof of the facts alleged in the petition and answering affidavit, and to report thereon.

p. 435

John Delahunty, for the appellant.

G. T. Goldthwaite, for the respondents.

This is an appeal from an order appointing a referee to take proofs in a proceeding to compel an attorney at law to pay over certain funds, which, in a document called a petition,, it is alleged were received by the attorney in his professional capacity. The petition is not signed or verified by either of the petitioners named in it, and all the material averments are stated to be upon information and belief. The document is signed by a third party, who appends to his signature the words “ Attorney for the Petitioners.” There is annexed to the petition an affidavit of the person who signed it, in which there is not even a statement that he is the attorney for the petitioners. He states in the affidavit.that it is true, except as to the matters therein stated to be alleged on information and belief, as to which matters he believes it to be true; that the source of his information and the grounds of his belief are conversations and correspondence had with one of the intended petitioners, and that the reason why the verification is not made by such petitioners, or either of them, is that they are without the State of Hew York, they being residents of Hartford, Connecticut.

The matter did not properly come before the court on this document. There is no reason given why the intended petitioners themselves could not have signed and verified it and put themselves in the position required of every suitor, that he shall take the responsibility attached to the institution of judicial proceedings on his behalf. The facts that the intended petitioners are residents of a neighboring State and are absent from the State cf Hew York, do not, standing alone, relieve them from the necessity of verifying their own statements, nor authorize an attorney of this court, upon his own application, based upon the unsworn and ex parte statements of his clients, to institute a summary proceeding of this character against another attorney at law.

The appellant has, however, answered the petition, and has, under oath, denied the charges made against him. If, by so doing, he has waived objections to the manner in which the subject was brought before the court, and we are required to consider the merits

p. 436

of the application, then it. is apparent from the written agreement - entered into between the appellant and the intended petitioners, that- the money received by him did not come into his possession as ■an attorney at law, but under a contract with respect to certain business matters as to which he ivas employed, not because he was an attorney at law or in the discharge of a duty exclusively pertaining to a professional relation, but in which any person, lawyer or layman, might have been engaged or employed.

The order appointing a referee to take proof of the facts must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Rumsey, Ingraham and Hatch, JJ., concurred.

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