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Manganaro v. H. J. R. Realty Corp.

29 A.D.2d 566 Court N.Y. App. Div. Decision date 1967-12-29 English

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p. 566
Edward Manganaro, Plaintiff, v. H. J. R. Realty Corp., Defendant. Theresa Denig et al., Plaintiffs, v. Tony Demorato et al., Defendants. Stanley P. Danzig, Appellant-Respondent; David A. Goldner, Respondent-Appellant.

Two orders of the Supreme Court, Kings County, both dated March 8, 1967, each in a respective one of the actions, reversed, on the law, without costs, and motions by respondent-appellant dismissed, without prejudice to the commencement of a plenary action. No questions of fact were considered on this appeal. In our opinion, under the circumstances of these eases wherein the former attorney seeking compensation does not have a charging lien and the judgments in the actions have been satisfied, he can only seek recovery by way of a plenary action against the attorney substituted for him (cf. Shatzkin v. Shahmoon, 19 A D 2d 658 ; Goldman v. Rafel Estates, 269 App. Div. 647 ; Matter of Weldon v. De Martini, 35 Misc 2d 710 ). A decision on the merits should not be made upon affidavits but after a full hearing. Christ, Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.

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