In re Neville — 71 A.D. 102

Majority

p. 102

In the Matter of the Application of John H. Neville, Respondent, to Compel Payment by Edward J. Newell, his Attorney, Appellant, of Moneys Received by him as such.

Headnote

Attorney and client—summary proceeding to compel an attoimey to pay Ms notes accepted by the client in place of money collected by the attorney.

A client, who, at the request of his attorney, takes the attorney’s promissory notes for moneys which the attorney has collected for him, catmot, in the event of the failure of the attorney to pay the notes at. maturity, maintain a summary proceeding to compel the attorney to do so, but will be relegated to an action at law upon the notes. ' I

p. 103

Appeal by Edward J. Newell, an attorney at law, 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 29th day of November, 1901, granting an application made by John H. Neville to compel Edward J. Newell, his attorney, to pay over to him a certain sum of money collected for him by said attorney.

David H. Knapp, for the appellant.

Henry Cooper, for the respondent.

The petitioner alleges that he employed the appellant, an attorney at law, to take proceedings to procure his reinstatement as a member of the police force of the city of New York, and to recover all salary due and payable to him between the date of his removal and his reinstatement, for which services the petitioner agreed to pay the attorney seventy-five per cent of the amount that he might recover for the petitioner for the unpaid salary due and payable for such period. The attorney under this retainer procured the reinstatement of the petitioner as such police officer, and received as the back salary $4,148. The attorney paid to the petitioner $625, and kept the balance. The petitioner states that upon his demand for the balance due him, the attorney stated that he was unable to pay at that time and requested the petitioner to take his notes therefor, amounting in the aggregate to $397, payable three or four months after date, which notes the petitioner accepted and still retains; that after the maturity of the notes, the petitioner demanded payment from his attorney of the amount thereof, which the attorney neglected'and refused to pay, whereupon the petitioner instituted this summary proceeding to compel the attorney to repay him the amount of the notes.

There would seem to be no question but that there is here disclosed -a gross violation of duty by the attorney in appropriating a portion of the money that he had collected for his client and which, even under his sevénty-five per cent contract, he was bound to pay. When his client demanded payment of that sum he said that he was unable to pay it. But when the client accepted the attorney’s

p. 104

notes for the balance due, he changed the relation that existed between himself and his attorney, to that of debtor and creditor, and the payment of such an indebtedness should not be enforced by these proceedings. Under this agreement, the attorney was to have a fee of over $3,000 for conducting a proceeding to reinstate a policeman. Such a fee was, to say the least, an extremely liberal compensation for the services rendered, and the fact, that the attorney used the balance of the money after he had received it for his own purposes, so that it was “ not convenient ” for him to repay it to his client upon demand, would indicate that the attorney was guilty of unprofessional conduct which deserves severe condemnation. The acceptation by the client of the promissory notes 'of the attorney for the repayment of the amount, with interest, however, precludes him from collecting the amount of those notes by this, summary proceeding, and he must be left to his action at law to. recover the amount due him on the notes.

The order appealed from should, therefore, be reversed and the-motion denied ; but, considering the amount that this attorney has. received and his violation of his duty to his client, the reversal should be without costs.

Yan Brunt, P. J., Patterson, McLaughlin áud Hatch, JJ.,, concurred.

Order reversed and motion denied, without costs.