Opinion
December 29, 1967
Two orders of the Supreme Court, Kings County, both dated March 8, 1967, each in a respective one of the actions, reversed, on the law, without costs, and motions by respondent-appellant dismissed, without prejudice to the commencement of a plenary action. No questions of fact were considered on this appeal. In our opinion, under the circumstances of these cases wherein the former attorney seeking compensation does not have a charging lien and the judgments in the actions have been satisfied, he can only seek recovery by way of a plenary action against the attorney substituted for him (cf. Shatzkin v. Shahmoon, 19 A.D.2d 658; Goldman v. Rafel Estates, 269 App. Div. 647; Matter of Weldon v. De Martini, 35 Misc.2d 710). A decision on the merits should not be made upon affidavits but after a full hearing. Christ, Acting P.J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.