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O'Sullivan v. Metropolitan Street Railway Co.

79 N.Y.S. 481 Court N.Y. Sup. Ct. English

Delivered by GILDERSEEEVE, J.

Contents

Majority

p. 481
(39 Misc. Rep. 268.)
O’SULLIVAN v. METROPOLITAN ST. RY. CO.
(Supreme Court, Special Term, New York County.
November, 1902.)

Headnote

1. Change of Attorneys—Securing Fees.
A client has the right at any time during the pendency of a suit to arbitrarily change his attorneys, on securing to them their fees, providing there has been no misconduct on their part.
1Í1. See Attorney and Client, vol. 5, Cent. Dig. § 111.
Action by James O’Sullivan against the Metropolitan Street Railway Company. Motion to discontinue action. Granted.
Walter H. Wood, for the motion.
Elliot, Jones & Escher, opposed.

The plaintiff was injured by a car belonging to the defendant. While he was in the hospital, a representative of the law firm of Elliot, Jones & Escher called upon him, and got him to sign a written retainer of said firm authorizing them to bring this

p. 482
action for damages, and also had said plaintiff swear to the complaint. Both of these signatures were obtained on April 9, igoi. Before the summons and complaint were served, the said law firm received a telephone message from Dr. Fitch, on behalf of plaintiff, requesting them to do nothing further in the case until they had heard from plaintiff. They subsequently learned that another lawyer, to wit, Walter H. Wood, was about to bring suit for plaintiff on the same cause of action, whereupon the said firm' of Elliot, Jones & Escher served the summons and complaint which they had prepared. The plaintiff, by said Walter H. Wood, makes this motion to discontinue the said action so brought by Elliott, Jones & Escher. The latter have no objection to a discontinuance, provided they are paid a reasonable fee for their services. They claim that they have devoted considerable time and labor to an investigation of the circumstances of the accident, in addition to drawing the summons and complaint. The said attorneys also claim that they spent $25 on the reference to take testimony concerning the questions of fact put in issue on this motion. The said attorneys suggest that the motion tO' discontinue, without costs, be granted, but that the order should provide that plaintiff shall pay to the said attorneys, Messrs. Elliott, Jones & Escher, out of any recovery for the said injuries, that plaintiff may obtain from defendant, a sum to be fixed by the court, as their compensation for the services rendered, together with $25, their disbursements, as aforesaid.

The rule is that a client has the right, without assigning any cause, at any point in a suit or proceeding, to change his attorney, subject, however, to the payment of the former attorney’s fees, in a proper case, or the securing of such fees if they cannot then be fixed and determined. The court will ordinarily see that the original attorney is protected as tO' his fees, upon the substitution of another attorney, where the original attorney’s conduct has not been improper or neglectful. See In re Prospect Ave., 85 Hun, 257 , 32 N. Y. Supp. 1013 . Under the facts of this case, I am of the opinion, that Messrs. Elliot, Jones & Escher are entitled to the protection of the court as to their fees.

An order may be entered discontinuing this action, without costs, and providing that plaintiff shall pay, out of any recovery which he may obtain from the defendant by reason of the injuries upon which the cause of action herein is based, to the said law firm of Elliot, Jones & Escher, the sum of $100, together with the sum of $25 disbursements. No costs of this motion. Ordered accordingly.