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City of Philadelphia v. Postal Telegraph Cable Co.

72 N.Y. St. Rep. 617 Court N.Y. App. Div. Decision date 1896-02-07 English

Delivered by RUMSEY, J.

Contents

Majority

p. 617
City of Philadelphia, Pl’ff, v. Postal Telegraph Cable Company, Resp’t. R. S. Guernsey, App’lt.
(Supreme Court, Appellate Division, First Department,
Filed Febr’y 7, 1896.)

Headnote

1. Attorney and client—Removal of attorney.
Upon a motion 'to require an attorney to dissolve his connection with his client in all actions in which he is acting for him as attorney and give up the papers in those actions upon which he has a lien for his services, it is
" error to order him to do so without providing for the settlement of all matters Between them and for fixing the amount due him and for its payment.
2. Same—Reference.
In such a case, the court may refer the matter to a referee, to fix the value of the attorney's fees in such other actions.
Appeal from an order made at special term, requiring the attorney for defendant to consent to the substitution of another attorney for defendant in all actions in which he represents defendant, and to deliver up on demand papers in regard thereto.
R S. Guernsey, for app’lt; W. W. Cook, for resp’t.

—As Guernsey refused to take any steps or consent to a substitution in the action in which this motion is made* it is quite probable that, had the order simply directed a substitution in that action, this court would not have interfered with it to modify its terms. Tuck v. Manning, 53 Hun, 455 ; 25 St. Rep. 130 . But it went further, and required Guernsey to dissolve his connection with the defendant in all actions in which he was attorney, and give up the papers in those actions upon which he had a lien for his services. McKibbel v. Nafis, 76 Hun, 344 ; 59 St. Rep. 101 . When the court undertook to do that, it should have provided for the settlement of all matters between the attorney and his client, and for fixing the amount due to him, and for its payment, because he would have lost his lien, and thus have been deprived of a right which, as to these cases at least, he had done nothing to forfeit it. Id. Where the client has made a summary application to remove his attorney, this court has the power to send it to a referee to fix his compensation. Ackerman v. Ackerman, 14 Abb. Prac. 230 ; Dimick v. Cooley, 3 Civ. Proc.

p. 618
R. 141, 151. This is a proper case for the exercise of that power.

The order should be modified by sending it to a referee to ascertain the amount to be paid by defendant to the attorney for his services in the several actions, and to report to the court the testimony, and his opinion thereon, without costs of appeal to either party. If the parties cannot agree upon the referee, he will be appointed upon the settlement of this order. '

All concur.