In re RABY — 51 N.Y.S. 552

Majority

p. 552

In re RABY.

(Supreme Court, Appellate Division, First Department.

May 6, 1898.)

Headnote

Attorney and Client—Accounting.

Where an attorney is shown to be in possession of his client’s money, and is called upon to account, he is bound to show in detail what he has done with it, and to justify its retention or expenditure, and it is not enough for him to merely state in general terms that he has retained it for counsel fees, and for moneys which he has paid out on account of the petitioner.

Appeal from special term, New York county.

In the matter of the application of Mary Baby for an order directing an attorney to pay over an amount alleged to be in his possession and belonging to her, plaintiff appeals.

Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLaughlin, and ingraham, jj.

T. J. McManus, for appellant.

A. Kling, for respondent.

This is an application to compel an attorney to pay over money to his client, which it is alleged that he has received. The receipt of the money is admitted, but it is claimed upon the part of the attorney that it has been accounted for. General allegations in regard to such account are indulged in, but nothing in detail is stated; and the attorney might just as well have contented himself with stating that he owed his client nothing as to have made the general allegations contained in his affidavit. All the circumstances attending the transaction are suspicious, and indicate that the petitioner has been imposed upon. Where an attorney is shown to be in the possession of his client’s money, and he is called upon to account, he is bound to show in detail what he has done with the money, and to justify its retention or expenditure. He cannot merely state that he has retained it for counsel fees, and for moneys which he has paid out on account of the petitioner. Upon the present condition of the papers, the court would, perhaps, be justified in making an order for the payment of the sums which are claimed from this attorney, as he has in no way complied with the obligations resting upon him in A'iew of the confidential relations existing between himself and his client. The more orderly procedure, hoAvever, would seem to be to direct a reference to take proof of the facts alleged in the petition, and ascertain the precise amount which is due from this attorney to his client, such reference to proceed summarily, and that the court may adjudge the payment of that amount.

p. 553

The order should be reversed, with $10 costs and disbursements, and the motion granted so far as to order a reference to take proof of the facts stated in the petition and answer, upon the coming in of which report an application may be made in the court below for a final order. All concur.