Buckley v. Buckley — 45 N.Y. St. Rep. 827

Majority

p. 827

Joseph F. Buckley et al., Pl’ffs, v. Mary Buckley et al., Def’ts.

(Supreme Court, General Term, First Department,

Filed April 14, 1892.)

Headnote

1. Attorneys—Fees—Abandonment op cause.

Where an attorney abandons an action of his clients for partition and is absent from the state for six years, and the parties have in the meantime settled the action, leave to enter judgment for his fees, costs and disbursements in such action is properly denied.

2. Same—Substitution.

An attorney can in no case be changed simply by the consent of the attorney himself; there must be consent both of the attorney and the party.

Appeal from order denying motion for leave to enter judgment by an attorney for the full amount of the fees, costs and disbursements incurred, or to be incurred, in an action for the partition of real estate.

G. IT. Stokes, for app’lt; H. W. Atwater, for resp’t.

Without considering the irregularities in the papers submitted upon this appeal, many of which properly form no part of the record and should be expunged therefrom in the disposition thereof, it seems to be sufficient to say that it appears upon the face of the -papers properly before the court that the appellant abandoned the cause of his client, left the state of New York, and was absent therefrom for the period of six years without paying any attention to the action in which he now seeks to have judgment entered for the purpose of recovering bis fees.

It is alleged upon the part of the appellant that he gave a substitution to another attorney to act for him as attorney of record. The appellant had no power to give any substitution. He was bound to render the services personally for his client or surrender the position of attorney. By rule 10 the attorney may be changed by consent of the party and his attorney, and not otherwise, except under special circumstances; but in no case can an attorney be changed simply by the consent of the attorney himself.

There seems to be no reason, therefore, why the parties should be required to wait six years for their attorney to return and assume the performance of his duties before disposing of the litigation which he had abandoned.

It appears from the record that the parties had settled between themselves the subject matter of this litigation, and the court should not at this late day lend its aid by any extraordinary means to the enforcement of any claim which the appellant may have.

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

Van Brunt, P. J., O’Brien and Andrews, JJ., concur.