Zaccour v. Zaccour

Order entered September 9, 1968, denying motion to compel plaintiff’s attorney to deposit into court certain fees and disbursements following the execution of a default judgment, unanimously reversed on the facts and the law, without costs and without disbursements. On the record before us it is not clear whether the retainer was contingent or otherwise. The letter of April 3, 1968, without clarification, would indicate that the arrangement between the plaintiff and his attorney may have been contingent in nature and that the attorney exercised some control over the division of the amount resulting from the litigation. “ Where, then, a fee is contingent, restitution of moneys received will be directed against an attorney as well as a party in the event of an adverse determination”. (Mormilo v. Allied Stevedores Corp., 8 A D 2d 217 , 218.) This, on the rationale that both shared risk as to the ultimate outcome of the litigation. If a debtor-creditor relationship exists however, recovery will be