Ex parte Ketchum — 4 Hill & Den. 564

Majority

p. 564

Ex parte Ketchum, Public Adm’r of the City of New-York.

Headnote

In order to warrant this court in granting a rule against a person the disobedience to which would be a contempt, he must not only be an officer of the court or a party to a suit or proceeding therein, but he must be so in rfespect to the particu. lar wrong which he is ordered by the rule to repair. Per Cowen, J.

Accordingly, where an attorney of the superior court of the city of New-York, who was also an attorney of this court, was retained to defend a suit pending in the former, and, in consequence of such retainer, received certain moneys belonging to his client; held, that this court had no power to grant a rule requiring the attorney to pay over the money, but that the matter belonged exclusively to the superior court.

p. 565

Motion for a rule that Kursheedt, an attorney of this court, pay oyer to the relator certain moneys which were alleged to have been received by him as attorney for G. A. Humbert, deceased, the administration of whose estate belonged to the relator. Sometime before Humbert’s death, he was arrested in the city of New-York, and held to bail in the sum of $4000 in an action of trover commenced in the superior court of that city. One Boker became his bail and Humbert left with him a note of $2000 as security. At the request of Humbert’s agent, Boker deposited in a bank in the city $2613,54 in cash, belonging to Humbert, to the joint account of Boker and Kursheedt, who was retained and acted in the cause as Humbert’s attorney on record. The money thus deposited was intended as a further indemnity to Boker against his liability as bail. In the spring of 1841, this money was drawn out of the bank on the suggestion of Kursheedt, and $2000 invested by him in treasury notes, which he held in trust for Boker’s indemnity. Humbert dying in Switzerland, where he resided, Kursheedt told Boker he was discharged as bail, and expressed an intention to send the money to Humbert’s father. He got the treasury notes cashed, but declined to pay the money over to the relator unless certain charges were allowed to an amount which the relator thought too high.

,A. Taber, for the relator,

cited Ex parte Staats, 4 Cowen, 76, and note ; Grah. Pr. 55 ; 2 R. S. 440, § 1, 2d. ed.

G. 22. J. Bowdoin, contra.

By the Court,

It is difficult to see any reason against a rule that Kursheedt should pay the balance due from him to Humbert’s estate out of the avails of the treasury notes. Nor do I understand that he refuses to do so. The dispute relates to the amount of his charges. The power to determine that dispute on motion belongs, I think, exclusively to the superior court, as an attorney of which Kursheedt was acting. It was in consequence of his retainer as an attorney of that

p. 566

court, and the confidence reposed in him as such by Humbert or his agent, that he was enabled to obtain the money. It makes no difference that he is also an attorney licensed by this court. The imputed default did not arise in the course of his practice here, or as a consequence of his license here. We cannot see that such license furnished any reason for the retainer, beyond that of the superior court.

I admit there may be cases where an attorney of this and other courts receiving money under an agency having no particular reference to a suit here, might be attached by this court for non-payment, on the principle that he was retained in respect to his professional character. That would leave room for inferring that, had he not been an attorney of this court he would not have been so retained. . But such an inference is excluded where the retainer was in a suit already brought and pending in another court. It is impossible then to say that he is in default as an attorney of this court, which I take it we must see before we have authority to punish him by attachment. We might about as well attempt to punish a man for professional misbehavior in conducting a suit or defence in the court of- a neighboring state, as to interfere on this motion. Suppose the attorney of a county court to be guilty of the plainest misconduct, the mutilation of a record for instance, no one would suppose that we could issue process of contempt because he happened at the same time to be an attorney of this court. To warrant a rule against a person, the disobedience to which would be a contempt, he must not only be a party or officer of the court, but he must be so in respect to the particular wrong which he is ordered by the rule to repair.

Motion denied..