In re Pollock — 74 N.Y.S. 976

Majority

p. 976

In re POLLOCK.

(Supreme Court, Appellate Division, Second Department.

March 7, 1902.)

Headnote

Attorneys—Payment of Money Collected—Petition—Answerino Affidavit-Motion to Dismiss—Remission to Action at Law.

Where respondents’ affidavit, in answer to a petition to compel attorneys to pay over money to petitioner, stated that in view of certain facts the petition should he dismissed, and the petitioner remitted to his action or to a legal proceeding, and that respondents desired an action to he brought, so as to enable them to plead a counterclaim, it was apparent that respondents contemplated some sort of action other than the present proceeding, though that might be termed a “legal proceeding”; and hence, upon respondents’ moving to dismiss the proceedings on the grounds set forth in the answer, such motion should not be denied on the theory that no request that petitioner be remitted to an action at law had been made.

Appeal from special term, Kings county.

Petition by Norman H. Pollock to compel Henry G. Atwater and another, attorneys at law, to pay over moneys collected for petitioner. From an order overruling objections to the proceedings, and directing the payment of money to the petitioner, respondents appeal.

Reversed.

Argued before GOODRICH, P. J„ and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

Alfred B. Cruikshank, for appellants.

Jerry A. Wernberg, for respondents.

The learned justice who presided at the special term, at the close of his opinion, writes these words:

“No request that the petitioner be remitted to any action at law having been made, I have taken the testimony, and fix the amount which the attorneys may retain for their services and expenses at $664.88.”

Thus we may assume that the supposed absence of such request moved the learned court to the summary procedure. But turning to the record, we find that the respondents, in their answering affidavit, showed that:

“In view of the facts stated above, and the absolute responsibility and good faith of the respondents, these proceedings should be dismissed, and the petitioner remitted to his action or to a legal proceeding to have the amount adjusted in a proper way. That respondents desire that an action should be brought by the said Pollock against them, in proper form, to recover said sum, in order that they may have an opportunity of pleading a counterclaim against him for a considerable sum which the said Pollock owes them over and above all moneys which they have retained for their fees and disbursements as aforesaid.”

While it may be suggested in answer that the proceeding in question is a “legal proceeding,” yet it is quite apparent that the appellants, by this request, contemplated some sort of action other than the present proceeding. When, upon the order of the learned special term, the matter came up for a hearing, the record shows that the respondents “objected to proceeding, and said objections were overruled as follows: “Respondents moved to dismiss the proceedings on the grounds set forth in the answer.” Upon the day to which

p. 977

the matter was adjourned, the respondents again moved to dismiss the proceedings upon the grounds stated in the answer, but the court refused to entertain the motion on the ground that they had already been made and denied upon the return of the petition, whereupon the respondents excepted. We think that the respondents thus made a request that the petitioner be remitted to his action. We do not express any opinion upon the merits, but we rest with pointing out that, in our opinion, the respondents had made the request which the learned special term said had not been made, and the omission of which evidently w.as stated by it as an inducing cause, if not the inducing cause, for the entertainment of the summary proceedings in question. We think that under these circumstances the orders should be reversed, and the proceedings dismissed, without costs, and without prejudice to the petitioner to proceed by any action which he may deem proper to institute. We think that this determination cannot be prejudicial to the morale of the profession, inasmuch as the learned and able justice presiding at special term expresses the opinion that the attorneys, no doubt, acted in good faith, and that their fault was a mistake.

The orders should be reversed, without costs.