Batterson v. Osborne — 44 N.Y. St. Rep. 839

Majority

p. 839

In the Matter of Ida A. Batterson, Resp’t, v. Sidney Osborne, App’lt.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

1. Attorneys—Summary proceedings to compel payment of money COLLECTED.

The mere fact that the moneys in question were collected on the settlement of an action brought in another state will not deprive the court of power to compel an attorney by summary proceedings to pay the same over to his client.

3. Same—Counsel fees.

Where the attorney has agreed that his client is to receive a specified sum, and the settlement was based upon such agreement, he cannot be heard to say that more money is required to pay counsel fees and disbursements.

Appeal from order directing attorney to pay moneys collected by him.

The appellant was employed by respondent in an action for divorce in Hew Hampshire, which was settled, and the sum of ¡|>3,500 received by him thereon. The settlement was agreed to by respondent on the theory that she should receive $2,500, exclusive of costs and expenses: but appellant refused to pay over -that amount, claiming that more money was needed for counsel fees and disbursements.

II. A. Sperry, for app’lt; G. A. IJeshon, for resp’t.

There does not seem to be any reason ■shown upon these papers for a disturbance of the order made in .the court below.

The only grave question which seems to be presented upon this ¡appeal is as to whether the relation of attorney and client existed between the respondent and the appellant. That such relation did exist, however, has been abundantly established by the .papers, and the mere fact that the action which had been commenced was brought in another state does not relieve the appellant from the obligations resting upon him as an attorney and ■counsellor of this court. He was employed by the respondent because he was an attorney and' as an attorney; and it was as such attorney that the services, whatever they were, were rendered to the respondent; and it was because of his being an attorney •that he was called upon to render such services. Therefore, he came within the power of the court by summary proceedings to ■compel the performance of the duties which he had taken upon himself.

It clearly appears from the papers contained in this record that the only authority for the appellant to make the settlement which was made was upon the theory that the respondent should

p. 840

receive the $2,500 without any costs or counsel fees being deducted therefrom. It is true that a stipulation was signed by which she agreed to take the sum of $3,500. But this in no way conflicts with her claim, as the additional sum over the $2,500' may very well have been supposed by her to be applicable to the payment of the counsel fees and expenses.

The claim that the appellant was in no sense the agent of the respondent respecting these deductions, but the agent of the husband and bound by his instructions, cannot be sustained. The-money was undoubtedly paid to him as representing the respondent The instructions to pay counsel and disbursements were general, and in view of the fact that this appellant had agreed that his client should receive $2,500, and that the settlement was based upon this agreement, he cannot now be heard to say that, more money is required to pay the counsel fees and disbursements.

The order should be affirmed, with ten dollars costs and disbursements.

O’Brien and Patterson, JJ., concur.