Yates v. Heath — 23 N.Y. St. Rep. 362

Majority

p. 362

Arthur G. Yates v. Wiillam H. Heath.

(Supreme Court, General Term,, Fifth Department,

Filed April 12, 1889.)

Headnote

Accounts—Error—When cannot be corrected.

In the computation and adjustment of certain accounts, before the referee who was directed to state and report the same, there were several errors committed. Held, that inasmuch as no appeal has been taken by the party to the detriment of whom they were committed, the errors cannot be corrected.

In the matter of the application of Francis A. Williams, receiver of William H. Heath, to compel Edwin 0. English, an attorney, to pay over to said receiver certain moneys, or that an attachment issue.

Appeal by the receiver of William H. Heath, from that part of the order- of the special term fixing the amount to be paid him by Edwin 0. English, an attorney-at-law, at $235.73.

Earl B. Putnam, for app’lt; M. Rumsey Miller, for resp’t.

The receiver, who was appointed in proceedings supplementary to execution in the case entitled Yates v. Heath, made a motion at special term to compel Mr. English, an attorney-at-law, to pay over to him, as such receiver, the amount of moneys which had been received by the attorney, namely, the sum of $1,769.10, which had been collected upon a policy of insurance held by Heath.

A reference of the disputed questions of fact arising on the motion was made.

p. 363

The referee was directed to state the amounts between the parties, and report the same, together with his opinion as to the jurisdiction of the court, to require the attorney, in this summary manner, to pay over to the receiver of Heath, moneys which had been so collected. The referee stated the accounts between the parties to be, substantially, as the special term afterwards determined them to be by the order appealed from, but reported that, in his opinion, the court had not the power, on a motion in the action in which the receiver was appointed to compel the attorney to give up the moneys which had been voluntarily paid to him by his client.

The referee held that the court ought not thus summarily to interfere. In this respect, the report of the referee differs from the decision of the special term, where it was held that the court had jurisdiction and power to require, on a mere motion, the attorney to pay over to the receiver of his client’s property, moneys paid to him for professional services. No appeal has been taken from that part of the order of the special term, by the attorney; hence, no question as to the right or propriety of the court, interfering, summarily, between attorney and client, when both parties appear to have been satisfied, can arise.

The respondent, by not appealing, submits to that part of the order, being content, as his counsel asserts, to waive the question of jurisdiction, and being desirous of paying into court whatever moneys he has in his hands belonging to the judgment debtor.

This decision, therefore, will not be regarded as a precedent beyond the precise questions arising on the appeal.

There are, besides, some small errors made to the detriment of the respondent in the computation and in the adjustment of the accounts of the parties. The attorney is charged with the sum of $69.65, more than he should have been, but inasmuch as no appeal has been taken b^ him, this error cannot be corrected. Indeed, it was distinctly waived by the learned counsel for the respondent at the argument.

A perusal of the appeal papers, shows, satisfactorily, that the charges of the attorney against his client, which have been allowed by the special term (substantially following the report of the referee in this respect) were for valuable services actually rendered, and were reasonable in amount.

The order appealed from should be affirmed, but without costs. All concur,