Halbert v. Gibbs

The action out of which the present controversy arose was brought to recover a balance of $6,014, claimed to be due to the plaintiff from the defendant for material furnished, and labor and services performed, upon private residence premises in the city of New York. The defendant denied liability, and set up, by way of counterclaim, improper work, failure to furnish material, loss of rent, money loaned, and other items, amounting in the aggregate to the sum of $20,510.18. The action was begun about April, 1893, and Augustus B. Prentice was retained to defend the action, and served notice of appearance therein. He had, prior to this time, performed some service in endeavoring to negotiate a settlement of the matters in dispute. The cause being at issue, the same was, upon December 28, 1893, referred to Levi A. Fuller, as a referee, to hear, try, and de

The amount of the balance which the defendant’s attorney now claims is due and owing to him for his services is the sum of $3,410. Prentice claims that when he was retained by the defendant it was upon the understanding that his fees should be paid as the case progressed; that he expressly stated that he would take the case upon no other condition. The defendant claims that he has never promised to pay the attorney any sum of money that he has not paid; that he feels quite certain that he has fully paid what his attorney’s services were worth. It is not at all necessary that we settle this disputed question upon this motion. Enough appears in the affidavits, however, to show that the defendant upon this question is, if he insists, entitled to have his liability established in the usual forum where actions are tried and claims are established. One proposition stands out before us clear and distinct. It is that the attorney for the defendant refuses to proceed with the trial of this action, or to permit any one else to represent the defendant, unless he be paid, either in whole or in part, his claim for'service. He therefore brings himself squarely within the doctrine laid down in Matter of H-, 93 N. Y. 381 . By his refusal to proceed, in the language of the above case, “he discharged himself, and in such case it is clear that an attorney cannot leave his client in the middle of a matter, because he does not supply him with money, or by reason of any other difficulty, without running the risk of losing the benefit of that relation.” The attorney insists, however, that he has a lien upon the counterclaim set. up in the answer, and also upon his client’s papers, which he may not be deprived of, and which he is entitled to have protected before any order will be made substituting another attorney. It is quite true that the attorney has a lien upon his client’s cause of action or counterclaim, and that the same attaches to a verdict, report, decision, or judgment in his client’s favor (Code Civ. Proc. § 66); and this lien extends as well to papers of the client in his hands, not only for the costs of the suit, but for any general balance on account of other professional service rendered for the client. Bank v. Todd, 52 N. Y. 489 ; In re Knapp, 85 N. Y. 284 ; Tenney v. Berger, 93 N. Y. 524 . But in all of these cases the lien was upheld and continued upon the ground that the relation of attorney and client continued, and that the business in which the attorney was engaged was finished while the relation continued. In the last case cited the rule is recognized that, when an attorney accepts a retainer generally to conduct a legal proceeding, he enters into an entire contract to conduct the proceeding to a conclusion, and he cannot abandon his relation without justifiable cause. It is true that there is a somewhat anomalous condition respecting these contracts, for, while it is the duty of the attorney to proceed to a termination of the matter in which he has engaged himself, it is the right of the client to dis

“It is clear that the defendant, in view of the attitude taken by- his attorney, was entitled to a substitution, and there was nothing upon which any lien, as attorney, could attach, and that the only right which the attorney seeks to enforce is the right of the plaintiff to obtain judgment against his own client for want of a defense.” Tuck v. Manning, 53 Hun, 455 , 6 N. Y. Supp. 140 .

It will be found, and has been, within the authorities above cited, quite practicable for the court to protect an attorney in a proper case against a dishonest client. It is equally practicable to protect a client against improper practice and unjust demands of his attorney. So much is left to the general equitable power of the court in this regard that but little real difficulty will be encountered. We have passed the sentimental age, where counsel are required or expected to devote valuable service gratuitously from any sense of honor, however nice, and have long since reached the practical side of the profession, where honorable engagements upon both sides are to be qbserved,—the one to render faithful service, measured by his ability; the other to make compensation fairly or as may be agreed. In the present case we think that nothing appears which justified the attorney in the abandonment of . his client in the midst of the trial. We have rehearsed the facts for the purpose of showing what we regard as the unjustifiable delay in the prosecution of this action, and the enormous expense, comparatively, which has attended it. This class of actions, while complicated as to items as a house is of parts, is not, beyond that fact, difficult or extraordinary. They engage the attention of the courts at each term, and are disposed of with but little delay, when proper effort is made to that end. This suit has now been before the referee for over four years. The fees already paid amount to $6,600 more than plaintiff’s original claim. The item now demanded by the defendant’s attorney is $3,410, making the claims paid and those demanded, of which we now know, the sum of $10,010, and the end is not yet. For a long time the fees of referees led the procession of fees, and frequently amounted to more than the sums paid to counsel. But established order cannot always maintain itself. Stenographers looked with jealous eye upon this fatness of fees. Modestly, but with determination, pertinacity, and legislation to aid, they crept up, desire ever keeping pace with opportunity, until it has brought them at the top, with appetites whetted and keen scent for more. It is the usual thing now that stenographers’ fees are greater than referees’ fees. We read in

The order appealed from should be reversed, with $10 costs and disbursements, and the motion to substitute should be granted, with $10 costs. All concur.