Opinion
May 3, 1912.
H.A. Andrews, for the appellants.
Max D. Steuer, for the respondent.
The plaintiffs were formerly the owners of the premises 1702 and 1706 Park avenue in the borough of Manhattan. This action was brought upon an agreement for the reservation of the damages caused by the viaduct of the defendant railroad companies in front of said premises. Plaintiffs retained as their attorneys in said action the firm of Bushby Berkeley, composed of James C. Bushby and L.M. Berkeley. The action was commenced in April, 1906, by the said firm as attorneys of record. Their compensation under the contract of retainer was contingent upon ultimate success.
On April 22, 1907, plaintiffs paid said Berkeley as the representative of said firm of Bushby Berkeley the sum of $500 on account, it being agreed that the said sum should be applied primarily for the costs and disbursements of the litigation, and that the surplus, if any, should be applied on account of attorneys' services in said case and that the balance of the attorneys' compensation should be contingent on ultimate success.
Berkeley on April 23, 1907, remitted $75 of the said sum of $500 to said Bushby. Thereafter the case was tried and resulted in a judgment for the plaintiffs. Defendants appealed and the Appellate Division reversed the judgment and ordered a new trial ( 132 App. Div. 183), on which trial the complaint was dismissed, with $1,295.83 costs against the plaintiffs. This judgment was affirmed by the Appellate Division, with $98.72 more costs, which judgment was affirmed by the Court of Appeals, with $146.59 costs. ( 136 App. Div. 939; 203 N.Y. 577.) These costs, together with the disbursements for expert witnesses, for stenographer's minutes, printing and other expenditures, largely exceeded the $500 advanced under the agreement as aforesaid.
After the retainer the firm of Bushby Berkeley was dissolved but they remained as attorneys of record in this case. Berkeley has accounted to the plaintiffs for the $425 retained by him out of the said $500 but Bushby has wholly refused, although requested, to pay back said sum of $75 received by him or to apply it on account of said costs and disbursements. The order appealed from was made upon a motion by the plaintiffs to compel the respondent Bushby to repay said moneys so received by him. The Special Term having denied the motion this appeal is taken.
The moneys having been received by the attorneys of record for the specific purpose set forth, and there being no denial of the material facts alleged, we see no reason why the power of the Supreme Court over its attorneys at law to compel them to deal fairly with their clients, should not have been exercised. If there had been a dispute as to material facts the court could have sent the matter to a reference or have taken proof itself. As there was none the motion should have been granted.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, P.J., McLAUGHLIN, SCOTT and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.