Hyperlawhypertext legal database Porter v. Parmly 39 N.Y. Super. Ct. 219

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Porter v. Parmly

39 N.Y. Super. Ct. 219 7 Jones & S. 219 Court N.Y. Super. Ct. Decision date 1875-04-05 English

Contents

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MARY C. PORTER, Executrix, &c. v. ELEAZER PARMLY.

Headnote

I, ATTORNEY and client.
1. Agreement as to compensation—validity op.
1. An agreement to pay a certain fixed sum is now valid;
so also is
an agreement making either any compensation, or the amount of it, contingent on success in the action.
a. Duty of the court to recognize and enforce.
1. It is its duty to recognize and enforce such agreements when there is no charge of great hardship, extortion, or fraud.
2. Power op court on summary proceedings to compel payment BY ATTORNEY TO HIS CLIENT.
1. The facts that the taxable costs now belong to the party, and that the attorney and client may now enter into agreements as to compensation, such as above stated, does not abridge or affect the power formerly exercised by the court.
a. If the attorney claims under a specific agreement, and the client disputes the existence of the agreement, the court has power to try that question of fact, either on affidavits or the oral examination of witnesses before it, or through the medium of a reference.
1. Such a disposition of the disputed question of fact does not conflict with the constitutional provision as to trials by jury.
2. The exercise of the power does not depend on the insolvency of the attorney, nor on the question as to whether his retention of the money, or his claim thereto, is fraudulent or In had faith.
Before Monell, Ch. J., and Freedman, J.
Decided April 5, 1875.
Appeal by plaintiff’s attorney, from an order made in a summary proceeding instituted by her against him.
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The motion at the special term was made by Mrs. Mary C. Porter, the plaintiff in the action, for an order requring Randolph W. Townsend, her attorney in the action, to pay to her certain moneys collected and received by him, as such attorney, upon the judgment recovered by her in the action, or to show cause why an attachment should not issue against him.
The plaintiff in her affidavit alleged the retaining of Mr. Townsend as her attorney; the recovery of judgment in the action, and the receipt by him of the total amount thereof, namely thirty-one thousand nine hundred and sixty-three dollars and eighty one cents, and that thereupon he acknowledged satisfaction of the judgment.
The amount received included some two thousand two hundred and fifty dollars taxed costs and extra allowances.
Out of the sum recovered, Mr. Townsend paid the plaintiff the sum of sixteen thousand six hundred and eighty dollars and twenty-two cents, leaving a balance of fifteen thousand two hundred and eighty-three dollars and fifty-nine cents, to be accounted for by him. Out of this sum, the plaintiff in her moving papers, offered to allow to Mr. Townsend, for his costs and counsel fees, the sum of four thousand and seventy-four dollars and twenty-two cents.
On the part of Mr. Townsend, he read the affidavit of Linson D. Fredericks, who stated that the action was originally brought by Giles W. Porter, and that he (Fredericks) was retained by James L. Porter, a son of plaintiff and acting as his agent, to act as the attorney of record. That said James L. Porter informed the deponent that his father would not advance any money or pay any costs or counsel fees in the prosecution of the action, should he be unsuccessful therein, and it was thereupon finally agreed between the said James L. Porter and the deponent, that if he, deponent, would
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prosecute the action and succeed in collecting any money therein, that the deponent should have and retain one-half of the amount so collected, together with all the costs awarded to the plaintiff; and if the deponent was unsuccessful in the action, he was not to be paid anything for his services. That said Fredericks employed Mr. .Dyett (Mr. Townsend’s partner) as counsel, informing him of the agreement with Porter. Subsequently, Mr. Fredericks agreed to pay to Mr. Dyett, for his services in the event of a recovery in the action, the sum of five thousand dollars, which agreement said James L. Porter assented to. It was thereupon agreed that said Dyett’s law firm should be substituted as attorneys of record in the action ; that said Fredericks should continue to aid in the prosecution of the action, and the taxable costs should be divided ; but his lien for compensation under said agreement should not be impaired or prejudiced by the substitution. James L. Porter was informed of this, and assented to the substitution.
Mr. Townsend was thereupon substituted as the attorney of record.
The existence of any such agreement as to compensation, as alleged by Mr. Townsend, was denied by the plaintiff:
The original plaintiff, Giles W. Porter, having died, the action was continued in the name of his executrix.
After Mr. Townsend had collected the judgment, Fredericks gave him notice, claiming a lien on the money, and forbidding his paying over the same. And subsequently Fredericks assigned to Mr. Townsend’s firm his claim against the plaintiff.
Upon the return of the order to show cause, it was objected on the part of Mr. Townsend, that as he claimed compensation under the special agreement made with Fredericks, the claim under which had been assigned to him, the court could not entertain a sum
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mary application to compel the attorney to pay the money, and that the only remedy was by action.
The court, however, overruled the objection, entertained the motion, and sent it to a referee to ascertain and report the value of the professional services rendered by Mr. Townsend and his law firm, in the action ; and also whether any and what agreement of any kind was made between Fredericks, and the original plaintiff, or James L. Porter, as his agent, as to the rate or amount of the compensation of said Fredericks for his services as plaintiff’s attorney in the action.
Mr. Townsend objected to the reference, and also objected before the referee, claiming that he was entitled to a trial by jury of the disputed question of fact, but the objections were overruled.
The referee found as a fact that no such agreement was made. And after ascertaining the value of the services of Mr. Townsend’s firm, the court made an order directing Mr. Townsend to pay the difference between such value, and the sum remaining in his hands, to the plaintiff. Mr. Townsend excepted to the report of the referee, and upon the motion to confirm it again, and further, objected that the court had no power to try the question upon a motion.
Mr. Townsend appealed from the order.
R. W. Townsend, appellant, in pro. per. and A. R. Dyett, with A. J. Vanderpoel, of counsel, urged on the questions discussed and decided by the court
I.—Where as in this case the attorney’s claim to the money is made in good faith, the court has no such power or jurisdiction over him ; but the client’s only remedy is by action, and the attorney has an absolute right to a trial of his claim by a court and jury. hTo case exists in which the court on a summary application, before or since the code, ever claimed the power to pass on the question of the. amount of counsel fees. In
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the few cases where it has exercised such a power, it has done so without objection, and the question of the court’s power to do so was not raised. But the courts both in England, and America, on summary applications against the attorneys, have constantly ordered a reference to the clerk to tax their costs. This was the clerk’s duty. The attorney could not recover his costs without a taxation, and that taxation was conclusive as to items. And if there was a taxation the client could not dispute items before the jury ( 12 Johns. 315 ; 23 Wendell, 458). Consequently the client must show some defense to the entire bill of costs—e. g., negligence. The amount of the costs was not before the constitution referred to, or tried by a court and jury (Shepherd v. Steele, 43 N. Y. 52 ; 1 Sanford, 669, 569). The only questions they could try were the questions of retainer and that of negligence or some other defense to the whole bill. Ho such questions ever were tried by the court on any summary application against the attorney. But if the questions, which in this case were summarily tried, can be so tried, why may not the question of negligence which often is necessarily involved in the question of quantum meruit ? The code has made a radical change in the relation of attorney and client, as to amount and mode of compensation. The amounts fixed by the code for. costs are as between party and party alone. They afford no measure of compensation between attorney and client (1 E. D. Smith, 318; 11 Howard, 452 ; 16 Id. 160; 3 Sanford, 762; 1 Hilton, 498; 24 Howard, 521 ). They are not even, prima facie evidence thereof (same cases).
The Court of Appeals has held ih:;r the effect of § 303 of the code, has been to remove all disabilities of attorneys to make special agreements for rate of compensation, whether in specific amounts or in a portion of the recovery, and that such agreements are valid and lawful, and will be enforced, and the attorney’s lien to
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their full extent enforced and respected (2 Sanford, 141; Forgarty v. Jordan, 2 Robt., 319, 325; Rooney b. 2nd Ay. R. R. Co., 18 N. Y. 368 , 373; Fitch v. Gardner, 2 Keyes, 516); and that an agreement for a part of the recovery constitutes the attorney assignee pro tanto of the recovery, and gives him a lien which will be enforced ; and that the attorney is, therefore, in such case, liable under the statute for costs as a party in interest (Voorhis v. McCartney, 51 N. Y, 387 ). The attorney thus has a title to a portion of the judgment. “"It is his property.” By the Constitution of 1846, no person can be deprived of his property except by due process of law. This has always been held to mean a regular action according to the course of the common law. And by the same Constitution the right of trial by jury in cases in which it has been theretofore—(i. e. prior to 1846)—used, shall remain inviolate forever (3 Kernan, (13 N. Y.,) 378, 427, 450.) This refers to the nature and character of the question. It is of no consequence that the right or right of action has been created subsequently (Wood v. City of Brooklyn, 14 Barb., 425 ). 2 R. S. 537, § 19 directs that the court shall try the question of contempt on affidavits or other proof, but did the Legislature intend that such questions as were here tried should be tried wholly or even in part upon affidavits? But no contempt could be committed by the .appellant, unless his claim to be entitled to the amount which he did claim was fraudulent, made in bad faith and a mere pretense so as to amount to “ misbehavior in office ” or “ willful violation of duty” (2 R. S. 534, § 1; 3 R. S. 772, and authorities cited infra). Whenever the court has been asked to determine any question of fact between the attorney and client properly determinable in an action, tile court has uniformly refused to do so, whenever the objection has been taken (Balsbaugh v. Frazer, 7 Harris, 99; Longworth v. Hardy, 2 Disney, 75; And In re Paschall, 10 Wal
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lace 483; Barker’s case 49 N. H. 197 , 198; Bryant’s case 24 Id., 154; Hodson v. Terral (1833), 2 Dowling Prac. Cases, 264; Beal v. Langstaff, 2 Wilson, 371; In the matter of Mavris, 2 Ad. & E.. 582; Dagby v. Kentish, 2 Barn. & Ad., 411; In re Lord, 2 Scott, 131; In re, Phillips, 3 Jurists, 470; Brazier v. Bryant, 2 Dowl, P. C., 600; Meigs v. Binns, 3 Scott, 52; Comberbach 2 (1724). In re Jones, 1 Chitty, 651; Merrifleld's Law of Att'ys, 92; Duncan v. Yancey, 1 McCord Rep., 149 ; Cullinford v . Warren, 8 Barn & Cress., 220 ; 6 Mod., 16; Pitt v. Yalden, 4 Burr, 2060; Barker v. Butler, 2 W. Blackstone, 780). By 2 R. S. 534, § 1, courts have power to punish as for contempt, attorneys guilty of “ misbehavior in office” and “ willful neglect or violation of duty.” This is merely declaratory of the common law, (3 R. S. 772; see also Bacon's Abridgment, title " Attorney," Bonder's ed. (1856), and note and cases cited; Meux v. Lloyd, 2 C. B. N. S. 409; Hyman v. Washington, 2 McCord, 493 ; Haight v. Holcomb, 16 How Pr., 173 ; Fox v. Fox, 24 How. Pr., 409 ; Kennedy v. Brown, 2 Am. Law. Reg. N. S. 357 ; Atkins v. The Eibre Dis. Co. 10 Am. Law. Rep. N. S. 399, 400; 1 Peere Williams, 223; 20 N. Y. 226 ). Prior therefore to the Constitution of 1846, there was no usage to try such questions in any way in England, nor, except the quantum meruit, in America, and there that question was tried by a court and jury. But all questions of a similar character were tried in both countries by a court and jury.
II. But if such a disastrous power exists in the court and it can try the questions which it assumed to try in this case, it has no power to examine the parties or witneses orally (Meyer v. Lent, 7 Abb. 225 ); and can try such questions on affidavits only, unless it has power to refer them for trial; and it certainly has no such power. (1) The order of April 22, 1873, was not an order of reference under § 27 of the code. That applies to or
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clers of reference in an action on questions “not arising on the pleadings; ” i. e., not affecting the merits—e. g., upon ordinary practice motions to discharge orders of arrest, attachments, &c. Besides, § 271 applies to actions only (Code, § 8). This is a special proceeding {Id. §§ 2-8). (2) If this was a proceeding for contempt, the only authority which the court had was to order reference to take proof after interrogatories filed (2 Barb. Ch. Pr. 277). The court has no common-law power of reference. The authority to refer is entirely statutory, and where the authority does not exist the order of reference is void (People v. Brennan, 45 Barb. 345 ; 19 Wend. 21 ; Id. 108 ; 3 Daly, 105 ; Brink v. Republic Ins. Co., 2 Thomp. & Cook, 550 ; U. S. v. Rathbone, 2 Paine's C. C. R. 578, 583; Lee v. Tillotson, 24 Wend. 337 ; Turner v. Taylor, 2 Daly, 278 , 282; Townsend v. Hendrick, 40 How. Pr. 148 , 162, and by counsel arguendo, pages 150, 155; Evans v. Kalbfleisch, Ex'rs, 36 N. Y. Sup'r Ct. R. 450; Diedrich v. Richly, 19 Wend. 108 , 110; Taylor v. Porter, 4 Hall, 140 ; Hough's Manual, Convention 1846, 67).
Van Winkle, Candler & Jay, attorneys, and Edgar S. Van Winkle, of counsel, for respondent, in the points discussed and decided by the court, urged:
I. Courts have always had the power to take summary proceedings against their attorneys and other officers for misconduct, violation of duty, extortion, undue influence, or any wrongful proceeding. Such powers were not destroyed or affected by any provision of the Constitution of the United States, or of the State of Hew York, and the course of summary proceedings used and acted on by the courts before and since the adoption of those constitutions, is embraced and covered by the term “due process of law” (Merrifield's Law of Attorneys, London, 1830, p. 90; Bevins v. Hulme, 15 Meeson & Wellsby Ex., 88; Cooley's Constitutional, 336;
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Ex parte Creswell, 5 Dowl. Pr. 689; Simes v. Gibbs, 6 Id. 310; In re Aitken, 4 B. & A. 47; Wilmerdings v. Fowler, 14 Abb., N. S. 249; Merritt v. Lambert, 10 Paige. 352; Wallis v. Lambert, 2 Denio, 607 ; Starr & Wallis v. Vanderheyden, 9 J. R. 253; Howell v. Ransom, 11 Paige, 538; Barbour and others v. Case, 12 How., 351 ; Lyon v. Gibbs, 6 Dow. P. C. 600; Draper Co. v. Davis, 2 Atk., 295). In Casborn v. Barsham (2 Bean. 76), the Master of the Rolls declares that “ when undue influence is to be inferred from the nature of the transaction, or where the transaction itself is contrary to the policy of the law, I apprehend it is the province of the court to determine the point, and that the question ought not to be sent to the jury.” But where the attorney is employed in a matter wholly unconnected with his professional character, the courts will not interfere in a summary way (Pulling's Law of Attorneys, 421).
II. These powers are not affected or destroyed by the Code. “ The Code in extending the rights of attorneys, by allowing them to contract with their clients as to compensation beyond the allowances given by statute, did not relieve attorneys and their dealings with their clients from that healthful supervision which th.e courts ha,ve ever exercised. The reason for this supervision exists as strongly as ever. Whenever a contract between an attorney and his client enures greatly to the advantage and benefit of the attorney, the court will scrutinize it with great care. In such cases all presumptions are in favor of the client and against the propriety of the transaction, and the burden of proof is upon the attorney to show by extrinsic evidence that all was fair and just, and that his client acted understandingly and with a full knowledge of all the facts connected with the transaction or the subject-matter” (Haight v. Moore, 37 N. Y. Sup'r Ct., 161; 2 Chitty’s Gen. Practice, 338, 33; Tidd's Pr., 87 to
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90, 478; 1 T. Chitty's Arch., 40, 41; In re Atkins, 4 Barn, and Ald., 47; In re Bonner, Id. 811; Casborn v. Basham, 2 Beav., 76).
III.—These powers are not destroyed or affected in any way by any provision of the constitutions of the United States or of the State of New York. The only constitutional provisions that in the remotest degree bear on the case are :
Art. Y. of the amendments to the constitution of the United States: “No person shall be deprived of life, liberty, or property, without due process of law.”
Art. YII. of same: “ In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”
Art. 1, § 1 of constitution of State of New York : “No member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the laws of the land or the judgment of his peers.”
Art. 1, § 2.—“ The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever.”
Art. 1, § 6.— “ No person shall be deprived of life, liberty or property, without due process of law.”
Art. YII.—In the amendments to the Constitution of the United States the right of trial by jury applies only to the United States courts (Lee v. Tillotson, 24 Wend., 837 ). It does not apply to the separate States, but to the genera] government only (Jackson v. Wood, 2 Cow., 819 , b; Livingston v. Mayor, &c., 8 Wend., 85 ).
As to Art. Y. of the amendments to the United States Constitution, and § 6 of Art. 1 of the State Constitution, that no person shall be deprived of life, liberty, or property, without due process of law, it may be observed that due process of law is not confined to
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trial by jury, and probably does not refer to it, as that is provided for by itself; but it means any legal proceeding, or prescribed form, recognized as valid in its nature at the time the constitutional amendments were adopted (See Wynehamer v. People, 13 N. Y 378 , 425; Taylor v. Porter, 4 Hill, 140 ; White v. White, 5 Barb. 474 ). Such summary proceedings as the common law recognized, and such as were authorized by statute, prior to the adoption of the bill of rights, may be regarded as due process of law (Rockwell v. Nearing, 35 N. Y. 302 ).
Art. 1, § 2, of our State constitution only declares that the right of trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever, and does not affect cases in which such trial has not been heretofore used. The provision did not extend the right of trial by jury, any more that it restricted it. If, then, summary proceedings in cases between attorney and client, had been theretofore used, they'could still continue to be used. This word “ here tofore” in this clause of the constitution of‘1848, means before 1846, and can not to limit its meaning be carried back to 1777, and confined to the cases’which at that early period were triable by jury (Wynehamer v. People, 13 N. Y. 378 , 427, 458).
Subd. 3.—There is no force in defendant’s objection that the power of summary interference between attorney and client, is limited to cases in which the only question is as to adjustable costs, and does not apply to any other questions as to money between the parties. The agreement maybe the very and only thing complained of. The alleged agreement is the very thing the court must look to and inquire about. The great and beneficial power of summary proceedings in regard to transactions between attorney and client can not be nullified by the mere averment of an agreement. A large proportion of the cases in the books of summary proceedings
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against attorneys, are oases in which the attorney claimed to hold the moneys by an agreement. All contracts between attorney and client, relating to the subject-matter of the action, or the proceeds of it, are subject to the power of the court (Pulling’s Law of Attorney, 3d ed. 422; Howell v. Ramson, 11 Paige, 538; Hitchins v. Van Brunt, 5 Abb. Pr. N. S. 272).
IV. Ho agreement will be upheld unless made out by the strongest proof. If there is any doubt on the evidence, the attorney can only recover for the value of his services, and not under the special agreement (Haight v. Moore, 37 N. Y. Sup’r Ct. 161; Sanderson v. Glass, 2 Atkyns, 297; Ward, v. Hartpole, H. of L. 3 Bligh, 488; Wells v. Middleton, 1 Cox Ch. Cas. 112; Goddard v. Carlisle, Exch., 9 Price, 169; Edwards v. Myrick, 2 Hare, 60; Brown v. Bulkley, 1 McCarter, 451; Evans v. Ellis, 5 Denio, 640 ; Carter v. Palmer, S Clark & F. 657, 706; Stockton v. Ford,. 11 How. U. S. 232 (page 247); Howell v. Ransom, 11 Paige, 538; Hitchins v. Van Brunt, 38 N. Y. 335 ; Brock v. Barnes, 40 Barb. 521 ; Ford v. Harrington, 16 N. Y. 285 ; Barrey v. Whitney, 3 Sand. 696; Brockerson v. Consalies, 26 How. 213 ; 1793, Hewman v. Paine, 2 Ves. 199; 1801, Gibson v. Jeyes, 6 Id. 266a). And unless the agreement be for a reasonable compensation it will only be security for such sum as is justly due (Sanderson v. Glass, 2 Atkyns, 295, 297; Newman v. Paine, 2 Vesey, 199 ; Mason v. Ring, 1 Edwards’ Ch. 278; Hesbit v. Lockman, 34 N. Y. 169 ; Howell v. Ransom, 11 Paige, 538; Brock v. Barnes, 40 Barb. 521 ; Merritt v. Lambert, 10 Paige, 352; Haight v. Moore, 37 N. Y. Sup’r Ct. 161; Walmsly v. Booth. Barb. Ch. 478; Drapers Co. v. Davis, 2 Atk. 295).
V. Courts having this inherent power to proceed in a summary manner, and not depending for its. possession on any statutory power, on a case duly presented, can proceed to satisfy its conscience in any
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manner (not illegal) which the exercise of a sound discretion may suggest. It may direct a special issue, it may order a general trial by jury, it may refer it to a master or clerk of the court, or to a special referee (Ryan v. Farrell, 4 Dowl. Pr. 582 ; Ex parte Sharpe, 5 Bowl. Pr. ; Starr v. Vanderheyden, 9 J. P. 253).

The only question we are asked to examine in this case, is as to the power of the court, upon a summary application to determine a disputed question of fact between an attorney and Ms client, as to the existence of a special agreement, fixing the rate of the former’s compensation for prosecuting an action.

It is conceded that if the power exists, the mode adopted in this case is without objection. Upon a motion, properly before the court, it may, to inform its conscience, direct a reference to take the proofs (Marshall v. Meech, 51 N. Y. 140 ).

No exception to the referee’s report is urged ; and Ms finding that no agreement fixing the attorney’s compensation existed, made it competent for him under the order, to ascertain the reasonable value; and his report, confirmed by the court, is conclusive.

• But the objection was taken at each successive step in the proceeding, that the court, upon a motion, could not try the disputed fact of the existence of the alleged special agreement. And it necessarily follows that, if the power does not exist, the order of reference and all the proceedings under it, as well as the order appealed from, was erroneous.

The power to proceed summarily to compel an attorney to pay over the money of his client, is not questioned in cases wdiere there is no dispute as to the rate or value of the attorney’s services, or where the rate is fixed by law, or the value can be determined upon a quantum, meruit. In such cases the court will ascer

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tain what is a suitable compensation, and direct the balance of the money in the hands of the attorney, to be paid to the client.

And those are the ordinary cases, where in England and this country, the courts proceed upon the principle that attorneys, being officers of the court, should be brought summarily within its authority, for any misconduct, violation of duty, or other wrongful proceeding towards bis client.

But it is claimed that the present case differs from those in which the court has usually entertained the proceeding, in this, that the attorney’s compensation was fixed by an agreement made between himself and his client, and that the existence of such agreement is in dispute.

That issue, it is insisted, the court can not try on a motion.

The validity of the agreement which formerly would have been void (Merritt v. Lambert, 10 Paige, 352), is now established by law.

The code (§ 303) provides that the measure of an attorney’s compensation may be the subject of an agreement between himself and his client; and such agreements, where there is no charge of great hardship, extortion or fraud (Barry v. Whitney, 3 Sandf. 696 ), it is the duty of the court to recognize and enforce.

There is no restriction as to the nature or extent of the agreement, and, therefore, as in this case, the amount of compensation maybe made contingent upon success in the action (Fitch v. Gardner, 2 Keyes, 516; Hitchings v. Van Brunt, 38 N. Y. 335 ).

The lien of an attorney which formerly was limited to his taxable costs and counsel fees, is now extended to any sum which may be agreed upon, as the measure of his compensation (Rooney v. Second Ave. R. R. Co. 18 N. Y. 368 ; Marshall v. Meech., ubi sup.).

The radical change in the law, by which the taxable

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costs, which formerly belonged to the attorney, are now given to the party, and the right now to fix by agreement the attorney’s compensation, it is insisted, presents the question of the power of the court over attorneys in a new aspect and relieves it of the force of those cases where the power has ordinarily been applied.

The measure of the attorney’s compensation in this case, he says, was fixed by agreement, and the agreement is denied by the plaintiff. Upon that issue the attorney must succeed, or probably fail entirely to recover any compensation whatever. For having alleged a special contract, it is at least doubtful, if having failed to establish it, he then can recover upon a quantum, meruit.

The only issue in this case is as to the special agreement. The attorney does not claim otherwise, and he insists he has the right of having that issue tried by a jury.

Under recent decisions (Townsend v. Hendricks, 40 How. Pr. 143 ; Kane v. Delano, 11 Abb. N. S. 29; Welsh v. Darrah, 52 N. Y. 590 ; Evans v Kalbfleisch, 36 Sup’r Ct. 450; Ross v. Combes, 37 Id. 289), an action which merely involves the existence of an agreement is not referable. The agreement, being established the attorney would be entitled to recover the stipulated sum, and no account, long or otherwise, would require to be examined. And such an action the parties have the right to insist should be tried by a jury.

The effect of the constitutional provision “ that the trial by jury in all cases, in which it has been heretofore used, shall remain inviolate” (Art. 1, § 2), was fally considered in Townsend v. Hendricks, supra, and in Kane v. Delano, supra, where it was held that the right of trial by jury continues in all common-law cases, to which there is but one exception, namely : an action on contract requiring the examination of a long account.

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In an action by Mr. Townsend to recover his compensation, or in an action by the plaintiff to recover the money collected by the former, either party would have the right to insist that the.question in dispute should be submitted to a jury. If such agreement constituted the whole cause of action or defense, the court, under the cases cited, could not make a compulsory reference, but would be obliged to send it to a jury."

And that absolute right of trial by jury of a cause of action or defense, lies at the foundation of the objection in this case.

This is an initial proceeding as for a contempt in civil actions under the statute (2 R. S. 534), and it' the order requiring the payment of the money was lawfully made, the court can lawfully punish the attorney for his disobedience (Sub. 1 and § 20). But the statute-restricts the power to punish, to cases of disobedience of “any lawful order” made by the court, and does, not enlarge its common-law powers.

As yet, the attorney has not been adjudged in contempt. The order requiring him to pay has been suspended by the appeal, and he continues to make his objection which involves the “lawfulness” of the order. So that the statute furnishes no aid in determining the question of power in the court to make the order, for the disobedience of which it is sought under the statute to punish the attorney, but leaves the question to be determined upon reasons which are independent of the statute.

A motion to compel an attorney to pay over the money of his client is addressed to the equitable powers of the court (Sexton v. Wyckoff, 6 Paige, 182), and like other motions for cumulative relief, is made to the favor and conscience of the court (Ackerman v. Ackerman, 14 Abb. 229 ). And as equitable pow ersare discretionary powers, the court may or may not in its discretion, entertain the motion. But having

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entertained it, the appellate court will not- interfere with such discretion, unless there has been a palpable abuse. That is undoubtedly so, to the extent of the initial proceeding. So that, if upon the plaintiff’s affidavit the court was authorized, to make the order to show cause this court would not disturb the order. Upon her papers it appeared to be the ordinary case of a withholding of her money by her attorney. But when the issue was raised by the attorney upon the disputed fact of the existence of a special agreement, and he objected to the court’s farther entertaining the motion, claiming his right to have that question tried by a jury, it no longer remained, as he claims, a matter of discretion to proceed or not to proceed with the motion. For, if the attorney had such right of a jury trial, as is secured by the constitution, the court was without power to deprive him of it.

This absolute right of trial by jury in equitable action, of such issues as may now, under the blending of law and equity, be included in one action, is fully recognized by the court in several cases (Penn. Coal Co. v. Delaware &c. Canal Co., 3 .Abb. Ap. 470; Davis v. Morris, 36 N. Y, 563 ). But the right may be waived by not objecting (Barlow v. Scott, 24 N. Y., 40 ; West Point Iron. Co. v. Reymert, 45 Id., 703).

In Hudson v. Caryl ( 44 N. Y. 553 ), the action was to abate a nuisance and for damages, and it was objected that it was triable by a jury. The objection being overruled, it was tried by the court without a jury. On appeal the court recognized so much of the action as related to abating the nuisance as being of exclusive equitable cognizance, but as, under the code, a legal can be united with an equitable cause of action, the court held, that as the claim for damages could be united in the action, that issue should have been sub mitted to a jury.

In Colman v. Dixon ( 50 N. Y, 572 ), the action was

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to restrain the use of a trade-mark and for damages, and defendant applied for issues to be tried by a jury. This was denied on the ground, that the denial of the motion did not deprive the party of his right to a jury trial, if he had such right. At the trial he could move for such a.trial, and the refusal to grant the motion would be error, if the constitutional right existed.

The right, however, may be waived by failing to appear at the trial, or by omitting to object at the trial; but if the objection is taken, and the case is one in which a jury trial has been heretofore used, it must be so tried.

The constitutional provision is necessarily, I think, restricted to actions. The language is, the trial by jury “ in all cases” in which it has been heretofore used ; and I am not aware that at any time it was the. practice of the courts to send disputed questions of fact arising upon a motion to a jury for trial. Such questions were always determined by the court, or, under the authority of the statute, sent to are feiee to take and report the proofs (Code, § 271, Sub. 3). And even where the issue was such, that in an action the court could neither try or refer, it could do either when the question arose upon a motion.

As has already been said, motions are chiefly addressed to the equity side of the court; few are founded upon absolute right; and courts of equity have always when it saw fit, determined questions of fact without the aid of a jury. And its power to do so has not been disputed.

It can not, therefore, be said, that motions or any of the questions of fact arising upon motions, are “cases” in which the trial by jury was heretofore used; and, hence, they are not within the constitutional provision.

The power of the court was intended to be full, and very properly should be exercised in a summary man

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ner. The performance of the various professional duties of an officer of the court' should be rigorously enforced, and by means adequate to the end to be accomplished. This is due not only to the rights and interests of clients, who have confided in the integrity and skill of their attorney, but it is also due to the dignity and well being of the profession, and to the respect for the orders and decisions of the bench, which the court has the right to insist upon and require.

It was in view of this duty, that the court has always proceeded in a summary manner against an attorney, who has neglected or refused to pay over his client’s money.

But, as has already been said, the cases (and they are not many) do not show that there was any such dispute or issue raised between the attorney and client, as is raised in this case.

I have examined the cases cited by the respondent’s counsel, and none of them involved a disputed question of fact arising upon the assertion of a special agreement. They either involved the character in which the attorney acted, or the value or rate of his compensation which could be ascertained by a mere taxation. They all assert the power of the court to deal summarily with its attorneys; but in none of them, was there an agreement alleged, which fixed and determined the measure of compensation. They were cases arising in the English courts, or in this State before the code, and could not, therefore, have involved a question under a contract, made valid by the code, which was invalid before. Thus in (Merrit v. Lambert, 10 Paige, 352), the special agreement set tip by the solicitor was held to be void, and therefore, presented no issue upon it. And a like decision" was made in Matter of Bleakley (5 Paige, 311).

As the law existed at the time those decisions were made, the court determined as matter of law, upo

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n undisputed facts, that the alleged agreements could not be sanctioned by the court, as they tended to champerty and maintenance.

Those cases therefore do not reach the question before us, where, if the agreement is proven, it must be sanctioned by the court; and where the vital question is, Does such an agreement exist ?

The ground upon which the court placed its decision in Ackerman v. Ackerman (ubisup.), was that the power which the court exercises in the matter of an attorney’s lien is an equitable one, in which the aid of a jury is not necessary and can not be demanded as a matter of right. In that case, however, it did not appear that any special agreement respecting the attorney’s compensation was alleged, or that the objection was taken to the matter being tried by the coart. But upon the general power of the court to entertain the motion, the decision is explicit, as well as that there is no right of trial by jury.

In two English cases the court refused to try on a motion of this nature, a disputed question of fact. In Hudson v. Terrall (2 Dowl. O. S. 264), the motion was for the attorney to show cause why he should not pay over Ms client’s money, and the client averred that he had a special agreement with the attorney fixing Ms compensation. This the attorney denied, and the court (Bayley B.) say : “I think we can not interfere. You must go before a jury who will be competent to decide whether there was such an agreement.” In the other case (Beal v. Langstaff, 2 Wils. 371), the motion was to require an attorney to perform a parol promise to indemnify bail, and the court say: “ This is only a breach of a parol promise, and we can not interfere in a summary way.”

One or two cases in this State indicate opinions which are claimed to be favorable to the objection of the attorney in this case.

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The power of the court (which, however, is firmly upheld) it is claimed is qualified in Bowling Green Sav. Bank v. Todd ( 52 N. Y. 489 ), and must be deemed to be limited by the decision, to matters as to which there is no dispute as to the facts. The court say (p. 493) “ the practice in this State has been uniform to allow au attachment when the attorney retains money in his hands that justly belongs to his client.” But there the court determined, as a matter of law, upon undisputed facts, as in Merritt v. Lambert. (ubi sup.), that the lien which the attorney claimed did not exist. And now the converse is claimed, that if the facts had been in dispute, the court would not have entertained the motion.

In Haight v. Holcomb ( 16 How. Pr., 173 ) the defendant moved to set aside an execution on the ground that the judgment was settled. The execution was issued by the attorney for his costs. In the course of the opinion the court say: “ Should there be a dispute between the attorney and his client, as to what the agreement was, and to what amount it extended, I know of no short remedy to which an attorney is entitled, by which to avoid settling that dispute in the usual way, and by the usual tribunals.”

And in Fox v. Fox ( 24 How. Pr. 409 ) the motion was to compel the plaintiff to pay his attorney and counsel, and a special promise was alleged (but which was denied), under which the services were rendered. And it was objected that the court could not, upon a motion, determine the question. The court.say: “If there be no short way of accomplishing this, there remains the usual way by direct action for that purpose. Indeed this seems to me the true mode of proceeding, .when there is a dispute as to what the contract is, or in regard to the amount which the attorney is' entitled to demand under it, and also where the amount of compensation is by express agreement

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made to depend on the value of the services, and is unliquidated.’’

None of these cases, however, assert an absolute right of trial by jury. Sitting as a. court in the exercise of its equity powers, it had the right to refuse to enter tain the motion, and to put the applicant to his action, when the disputed question could be determined by a jury. In. the same manner, a court of equity may try any question of fact arising in an equity action ; or it may upon motion and framed issues send it to a jury. And J do not understand any of the cases as deciding otherwise than that it rests in the sound discretion of the court, whether it will entertain a motion of this nature, where a question is at issue, which it is claimed by one or both of the parties, should be tried by a jury. And that is the extent of the meaning of the judges in the cases I have cited. In their judgment they were proper cases for a jury. And the judge who decided this case at special term, could have said the same, and sent the plaintiff to her action, and a jury. And such disposition of the matter would not have been disturbed.

But it does not follow, from any of the cases, and no such opinion is intimated, that there was any such right of a jury trial, as would deprive the court of its jurisdiction to entertain the motion.

The power which a court has over its officers is to prevent them from, or punish them for committing acts of dishonesty or impropriety, calculated to bring contempt upon the administration of justice (In re Paschal, 10 Wall, 483 ). In that case the court say, the ground of the jurisdiction thus exercised is the alleged misconduct of the officer. The question is not merely whether the attorney has received the money, but whether he has acted improperly and dishonestly, in not-paying it over. “If no dishonesty appears, the party will be left to his action.” The motion, as in this case, was to compel the attorney to pay over the

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money, and the attorney set up his lien for compensation. In denying the motion, Justice Bradley placed the decision upon, the ground that the attorney had the right to retain the money, if he had a fair and honest set-off; and that in retaining the money for the' purpose of procuring a settlement of his claim, he had done nothing to call for the summary interposition of the court.

. In that case, however, the power to entertain these motions is again fully recognized. But the court, in the exercise of its equity powers, admitting the justice of the attorney’s claim, refused to try the question of his lien, on the motion, and put the party to his action. Hot, however, as a matter of right, but as being a proper mode of determining the dispute in that case. '

The whole question resolves itself into this : First, can the court exercise summary authority over its attorneys, to compel them to pay over the money of their clients ? And, Second, can it, upon the motion, try any disputed question of fact, arising between an attorney and his client %

The first is determined by the large and uniform practice of the courts. And the second, by the consideration of the single question, whether it is a ease in which the trial by jury was heretofore used ?

The answers to these questions are adverse to the objection in this case.

The motion was addressed to the judicial discretion of the court below. We can not say, if we were now entertaining the motion and not reviewing the order, that we should not have felt constrained to have sent the plaintiff to her action, that the facts might go before a jury. But a mere, difference of views on that subject is not ground for reversal of the order made.

There has been no abuse of discretionary power.

Although the statute, under which this proceeding

is had, is designed to punish attorneys for any mis

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behavior in office, or willful neglect or violation of duty, or disobedience of the process or lawful order of the court,—rand the punishment may be a fine or imprisonment or both, as the nature of the case may require and although the severity with which the courts may deal with its officers, to punish them for the offenses enumerated in the statute, which is not restricted to a fine and imprisonment only, but may also be by removal from office (Matter of Bleakly, 5 Paige, 311), requires that all the constitutional rights of an attorney should be carefully guarded and protected ;—and although such, protection in due to him, not only nor so much, that his personal liberty may be imperiled, as that the charge involves his personal integrity and "honor, and is calculated to deprive him of his clients, of the respect of his associates, and of the confidence of the court; yet the mode adopted upon this motion was not calculated to jeopard any of such legal rights, but was probably a more satisfactory manner of settling his differences with his client, than it would have been to have sent the case before a jury, whilst it also afforded him every reasonable protection against the penalties which the statute was intended to inflict.

If in answer to the claim of the dienta defense was interposed which if sustained would justify the attorney in withholding his client’s money, the court, until his claim upon it. has been properly investigated and determined, would not invoke the power of the statute. And if, upon such investigation, the claim was found to be just, the court will protect the attorney and exempt him from the penalties of the statute.

The question is new, necessarily new, from the novel provision of the code which allows of an agreement to fix the measure of an attorney’s compensation, and which may be at an agreed sum, or contingent upon success.

In the cases where the courts have proceeded sum

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marily, the defense tó the motion"!)as been held insufficient in law, and the fact presented in this case has not arisen. There being no question in dispute, no constitutional right or otherwise of the attorney was violated in entertaining and determining the motion at special term.

But in this case, the constitutional right to have the fact which is alleged in answer to the plaintiff’s application determined by a jury, is sufficiently and properly raised.

But, for the reasons stated, it is not well taken.

There is no allegation or charge anywhere in the papers, which impugns the integrity, professional conduct, or skill of the plaintiff’s attorney and counsel. His claim to compensation is one recognized by law, and he was justified in withholding the money collected on the judgment, until his claim to compensation was allowed by his client, or disallowed by the courts. Ami the only question that has entered into the controversy, has been, as to the mode of trying the question.

The order appealed from must be affirmed, with costs.

Freedman, J., concurred.

Cases cited