Philadelphia v. Postal Tel. Cable Co.

Full title: THE CITY OF PHILADELPHIA, Plaintiff, v . POSTAL TELEGRAPH CABLE COMPANY…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 1, 1896

1 App. Div. 387 (N.Y. App. Div. 1896)

37 N.Y.S. 291

Opinion

February Term, 1896.

R.S. Guernsey, appellant, in person.

William W. Cook, for the respondent.

RUMSEY, J.:

As Guernsey refused to take any steps or consent to a substitution in the action in which this motion was made, it is quite probable that had the order simply directed a substitution in that action, this court would not have interfered to modify its terms. ( Tuck v. Manning, 53 Hun, 455.) But it went further and required Guernsey to dissolve his connection with the defendant in all actions in which he was its attorney, and give up the papers in those actions upon which he had a lien for his services. ( McKibbin v. Nafis, 76 Hun, 344.) When the court undertook to do that it should have provided for the settlement of all matters between the attorney and his client and for fixing the amount due to him and for its payment, because he would have lost his lien and thus have been deprived of a right which, as to these cases at least, he had done nothing to forfeit. ( McKibbin v. Nafis, supra.) Where the client has made a summary application to remove his attorney this court has the power to send it to a referee to fix his compensation. ( Ackerman v. Ackerman, 14 Abb. Pr. 230; Dimick v. Cooley, 3 Civ. Proc. Rep. 141, 151.) This is a proper case for the exercise of that power.

The order should be modified by sending it to a referee to ascertain the amount to be paid by the defendant to the attorney for his services in the several actions, and to report to the court the testimony and his opinion thereon, without costs of appeal to either party.

If the parties cannot agree upon the referee, he will be appointed upon the settlement of this order.

VAN BRUNT, P.J., WILLIAMS, PATTERSON and O'BRIEN, JJ., concurred.

Order modified as directed in opinion, without costs of appeal to either party.