Hess v. Joseph — 30 N.Y. Super. Ct. 609

Majority

p. 609

Hess vs. Joseph.

Headnote

1. The papers, upon an application to compel the attorney of the defendant to pay the plaintiff a sum of money deposited by the defendant with his attorney, should not be entitled in the action, the application being delms the action, and in'no sense a step or proceeding in the action.

2. A summary application to compel an attorney to pay over money received hr his professional capacity is only entertained on motion of the client. It is a privilege given to clients for their protection against exactions and overreachings, and is not extended either to outside parties, or to assignees of clients.

(Before Jones, J., at Special Term,

December, 1867.)

This is an application to compel the attorney of the defendant to pay the plaintiff a certain sum of money deposited by the defendant with his attorney.

The application comes up on an order to show cause, without any name signed to it as attorney. The order to show cause, and the affidavits on which it is founded are, however, indorsed “ --att’ys for plff.” All the papers are entitled in the action.

The case as shown by the moving papers is this. The defendant was arrested in this action under an order of arrest. His brother-in-law, J. Halberstadt, employed an attorney to procure the defendant’s release; the attorney undertook to procure bail for the defendant- on receiving $500 to secure him. The $500 was raised by the defendant’s said brother-in-law, and by him paid to the attorney who procured bail for the defendant, and thereupon the defendant was released from arrest.

This suit progressed, and about the 9th of April, 1866, the plaintiff’s attorney and said J. Halberstadt agreed that this $500 should be paid over to the plaintiff in part satisfaction of the plaintiff’s claim in the action against the defendant, and-¡that the plaintiff should release the de

p. 610

fendant’s bail in this action. Afterwards the plaintiff’s attorney demanded of the defendant’s attorney the said sum of $500 as his legal charges in this action, and offered, on receipt thereof, to release the bail and discontinue the action. The application is founded on the affidavits of J. Halberstadt, the defendant, and the plaintiff’s attorney. There are opposing affidavits which it is unnecessary to consider, in the view taken of the motion.

This application cannot be granted: First. The papers are wrongly entitled in this action. The application is dehors the action, and is in no sense a step or proceeding in the action.

Second. It appears to be made on behalf of the plaintiff, between whom and the defendant’s attorney the relation .of attorney and client does not exist. . A summary application to compel an attorney to pay over money received in his professional capacity is only entertained on motion of the client. This is a privilege given to clients for their protection against such exactions and overreachings, which the attorney by reason of the confidence placed in him by his client might resort to. But this privilege and extraordinary remedy is not extended either to outside parties or to assignees of clients.

Motion denied, without costs.