Grangier v. Hughes — 56 N.Y. Super. Ct. 346

Majority

p. 346

ANNA GRANGIER, Appellant v. WILLIAM D. HUGHES, et al., Respondents.

Headnote

Attorney, misconduct of; Summary power and jurisdiction of the court in the premises, should be invoked only in an action in which the alleged misconduct was committed and in the court in which such action was brought.

This court has power over an attorney, only so far as relates to his conduct in an action in this court. The practice has always been to make a motion of this kind in the particular action in which the misconduct occurred. It does not appear that defendants have so conducted themselves in this action, that the summary power of the court should be invoked against them.

The application should have been made in the original action in which the alleged misconduct was. committed, and it does not appear that such original action was or was not in this court, and if it was not, the application could not be entertained, hence the order denying the motion is denied.

Before Sedgwick, Ch. J., Freedman and Truax, JJ.

Decided January 7, 1889.

Appeal from an order denying a motion to compel the defendants to pay a judgment recovered against them.

V. Wright Kingsley, attorney and of counsel for appellant, argued:—

I. The Bowling Green Savings Bank of N. Y. v. Lewis L. Todd, 52 N. Y. 489 , was an action of foreclosure, and the special term, ordered attorneys to pay over $ 1,118.08, which they retained for services, within ten days, or that a non-bailable attachment issue. The general term modified the order to $519.81 and the court of appeals affirmed the general term, and held,

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the practice in this state has been uniform to allow an attachment when an attorney retains money in his hands that justly belongs to his clients. “The court exercises this jurisdiction over officers of the court in which correct conduct, as officers, the dignity of the court is involved. The misconduct for which punishment is authorized, is the retaining of the client’s money, without legal grounds.” The court will consider whether it is a case for summary proceedings, under the statutes and practice of the court..

II. It is now well settled that summary jurisdiction extends to any matter on which an attorney has been employed by reason of his professional character whether in actions or not. Anderson v. Bosworth, R. J., 1887, 6 Atlantic Rep. 339 ; 24 Weekly Digest, 200 ; Stage v. Stevens, 1 Den. 267 ; Gains v. Graves, 2 Rob. 707 ; People v. Wilson, 5 J. R. 367. By the Laws of 1846, chapter 150, p. 164, it provides, “that in all actions upon contract for moneys received by an attorney, or by any other male person in a fiduciary capacity, the defendant or defendants, shall be liable to imprisonment as in actions for wrongs.” This statute (with the Laws of 1847, ch. 390), are ample for the courts to exercise any summary proceedings in actions brought against attorneys who are acting in a fiduciary capacity, and they may be arrested by an order of the court, when action is brought, or when judgment is recovered therein, provided that he has not been arrested before judgment is recovered.

III. An attorney is an officer of this court, and is liable to be .called to account for his professional conduct toward his client whether in an action or otherwise. Code, §§ 14 and 2266; Pitts v. Davison, 37 N. Y. 235 ; 2 Rev. St. 534. If he collects moneys for his client as an attorney, and conceals the fact and converts the same to his own use and refuses to pay over the same when demanded, he is liable to arrest by an order of court or in default to pay, to be attached for contempt

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■in disobeying the order. This remedy may be had either in a summary way when there is an action in •which the' delinquency occurred, or when an action is brought therefor.

Hughes & Morris, attorneys, and H. J. Morris, of counsel for respondents, argued :—

I. The action was simply for money had and received, and so was the judgment and also the findings of Judge Arnoux at trial term. The erroneous allegations of a wrongful conversion in the complaint did not change the nature of the. action. Eector &c. v. Crawford, 36 Super. Ot. 308.

II. The plaintiff could have originally instituted this proceeding against defendants for the sum of $95, but having elected to proceed by action, she is confined to such remedies as may be afforded her in ' that action. Bohanan v. Peterson, 9 Wend, 503 ; Cottrel v. Finlayson, 3 How. 242 .

The papers on this appeal show that the plaintiff had employed the defendants as her attorneys to collect a certain claim for her; that they collected such claim, but that they did not pay over to her the amount of money that they had collected for her. A demand was made on the attorneys for the amount which the appellant claimed remained in their possession ; this demand was not complied with, and then the plaintiff brought an action to recover the-amount remaining unpaid, and recovered judgment for that amount with costs. Execution was issued on such judgment and was returned wholly unsatisfied. After such return of the execution the plaintiff, on affidavits and on the pleadings, made a motion to compel said defendants to pay the judgment recovered against them, as aforesaid. This motion was denied and the plaintiff appeals from the order denying this motion.

It was held by the special term, that by obtaining the

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judgment aforesaid, the plaintiff no longer could proceed in this summary way to compel the defendants to pay the money, and the case of Bohanan v. Peterson, 9 Wend. 503 , was cited as an authority for that proposition. This case is not an authority for that proposition. In the Bohanan case it appeared that the plaintiff in the action had settled the controversy between himself and his attorneys by taking a note from the attorney, and the court held that this note was a waiver of his right to proceed summarily against his attorney.

It is not necessary, for the decision of this appeal, that we should hold that a party waives his right to proceed summarily against his attorney by commencing an action to recover the amount claimed to be due from the attorney. This court has power over an attorney, only so far as relates to his conduct in an action in this court. Willmot v. Meserole, 16 Abb., N. S., 308.

'■ And the practice has always been to make a motion of this kind in that particular action in which the misconduct occurred. It does not appear before us that the defendants have conducted themselves in this particular action in such a manner that the summary power of the court should be invoked against them. The application should have been made in the original action in which the alleged misconduct was committed. It does not appear from the motion papers whether such action was or was not in this court; if it was not in this court, we cannot entertain this application.

The order appealed from is affirmed with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.

Cases cited

Bowling Green Savings Bank v. Todd 52 N. Y. 489 N.Y. 1873-05-06 p. 346
Gross v. Graves 2 Rob. 707 N.Y. Super. Ct. p. 347