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In re Lesster's Will

134 N.Y.S. 401 Court N.Y. App. Div. Decision date 1912-03-22 English

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p. 401
In re LESSTER’S WILL.
(Supreme Court, Appellate Division, First Department.
March 22, 1912.)

Headnote

1. Attorney and Client (§ 75[1] )—Substitution of Attorneys—Misconduct.
The determination as to whether an attorney in a will contest had been guilty of such misconduct as to justify an unconditional substitution should not have been made on conflicting affidavits.
[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 110-119; Dec. Dig § 75.*]
2. Attorney and Client (§ 75*)—Substitution of Attorneys—Misconduct.
An order directing a referee to take proof as to charges against an attorney in a will contest, in order to determine whether there shall be an unconditional substitution, and directing the surrender by the attorney of papers, should protect the attorney’s rights by providing for the retention of his lien for the value of services on the interest of his employer in the estate, or on any property or sum agr'-'l to be given the employer in settlement of the contest, subject to the determination as to whether such lien has been forfeited by misconduct.
[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 110-119; Dec. Dig. § 75.*]
Appeal from Surrogate’s Court, New York County.
In the matter of proving the last will and testament of William C. Lesster, deceased. From an order directing a substitution of attorneys, the deposed attorney appeals. Order modified and affirmed.
Argued before INGRAHAM, P. J„ and LAUGH LIN, CLARKE, SCOTT, and MILLER, JJ.
John Leary, for appellant.
James F. Lynch, for respondent.

[ 1 ] The question, whether the appellant had been guilty of such misconduct as to justify an unconditional substitution of attorneys, should not have been determined on conflicting affidavits.

p. 402
[2] Pending the determination of that question, the appellant's rights should in some manner be protected. We think he will be fully protected by an order preserving his lien on the respondent’s interest in the estate in controversy.

The order should be modified so as to direct the referee to take proof as to the charges against the appellant and so as to provide for a substitution of attorneys and the surrender of papers on condition that the appellant retain a lien for the value of his services on the respondent’s interest in said estate and on any property or sum of money agreed to be transferred or paid to the respondent in settlement of the will contest, subject, however, to the determination of the question whether said lien has been forfeited for. misconduct; and as thus modified the order should be affirmed, with $10 costs and disbursements to the appellant.