Gangewere v. Bernstein

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation199 F. Supp. 38
Decision Date13 November 1961
PartiesMary GANGEWERE and Russell Gangewere, her husband, and Russell Gangewere, individually, and Ann Lewis, Plaintiffs, v. Celia BERNSTEIN and William Bernstein, her husband, Defendants.

199 F. Supp. 38

Mary GANGEWERE and Russell Gangewere, her husband, and Russell Gangewere, individually, and Ann Lewis, Plaintiffs,
v.
Celia BERNSTEIN and William Bernstein, her husband, Defendants.

United States District Court S. D. New York.

November 13, 1961.


199 F. Supp. 39

Baar, Bennett & Fullen, New York City, Milton I. Newman, New York City, of counsel, for plaintiffs.

David E. Winer, New York City, petitioner, pro se. Rivkin & Rosen, New York City, Louis Rivkin, New York City, of counsel.

MacMAHON, District Judge.

These are two motions relating to the substitution of attorneys in a negligence suit. Plaintiffs were referred to David Winer, a New York attorney, by Frank Scerbo, the New Jersey attorney they originally engaged. At that time, Winer was a member of Baar, Bennett & Fullen, who became attorneys of record when the action was filed in this court. Plaintiffs made a contingent fee arrangement with Scerbo, but their, or his, arrangement with Winer and/or his firm are unclear.

Winer, who had handled the case for his firm, withdrew from the partnership on May 1, 1961, and plaintiffs directed the firm to release the files to him. It refused and, as a result, Winer was handicapped in conducting discovery procedures. The clients, having had enough of the dispute, move to substitute a new firm as their attorneys.

A client has an absolute right to replace his attorney, with or without cause. The Flush, 277 F. 25 (2 Cir., 1921), cert. denied, Bulk Oil Transports v. Thompson, 257 U.S. 657, 42 S.Ct. 184, 66 L.Ed. 421 (1922). All the attorneys involved, in recognition of the rule, agree to the substitution. However, both Winer and Baar, Bennett & Fullen claim an attorney's lien for past services and ask that the order of substitution be conditioned on a recognition of that lien.

A discharged attorney, other than one discharged for cause, Matter of Weitling, 266 N.Y. 184, 187, 194 N.E. 401 (1935), has two distinct liens to secure payment for past services: (1) a retaining lien on all the client's property in his possession, and (2) a charging lien upon the client's claim and any recovery which may be obtained. Robinson v. Rogers, 237 N.Y. 467, 470, 143 N.E. 647, 33 A.L.R. 1291 (1924). The New York Judiciary Law, § 475, 29 McKinney's Consol.Laws, c. 30, codifies the charging lien, and this statute applies in this federal court. Nolan v. Hemingway Bros. Interstate Trucking Co., 88 F.Supp. 111, 113 (S.D.N.Y.1950).

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3 practice notes
  • F. PALICIO y COMPANIA, SA v. Brush, No. 61 Civ. 2299.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 21, 1966
    ...with or without cause, and retain a new one. E. g., Doggett v. Deauville Corp., 148 F.2d 881 (5 Cir. 1945); Gangewere v. Bernstein, 199 F. Supp. 38 However, the issue in the case at bar is somewhat different. Here there is no question that the Cuban government has authorized the interventor......
  • Paolillo v. American Export Isbrandtsen Lines, Inc., No. 66 Civ. 1737
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 14, 1969
    ...Co., 2 Cir., 1907, 154 F. 22, 25." Application of Kamerman, 278 F.2d 411, 412-413 n. 1 (2 Cir. 1960). 3 Gangewere v. Bernstein, 199 F.Supp. 38 (S.D.N.Y.1961); Robinson v. Rogers, 237 N.Y. 467, 470, 143 N.E. 647, 33 A.L.R. 1291 (1924). The New York Judiciary Law, § 475, 29 McKinney's Co......
  • Western Life Insurance Company v. Nanney, Civ. A. No. 2229.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • August 15, 1968
    ...Lewis, Esqs. of a lien for their services to her as attorneys, see T.C.A. §§ 29-202 and 29-203; Gangewere v. Bernstein, D.C.N.Y. (1961), 199 F.Supp. 38, 39-40 2, 4; cf. Cummings v. Patterson, C.A.Tenn. (1964), 54 Tenn.App. 75, 388 S.W.2d 157, 166 8; Falcone v. Hall, (1956), 98 U.S.App.D.C. ......
3 cases
  • F. PALICIO y COMPANIA, SA v. Brush, No. 61 Civ. 2299.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 21, 1966
    ...with or without cause, and retain a new one. E. g., Doggett v. Deauville Corp., 148 F.2d 881 (5 Cir. 1945); Gangewere v. Bernstein, 199 F. Supp. 38 However, the issue in the case at bar is somewhat different. Here there is no question that the Cuban government has authorized the interventor......
  • Paolillo v. American Export Isbrandtsen Lines, Inc., No. 66 Civ. 1737
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 14, 1969
    ...Co., 2 Cir., 1907, 154 F. 22, 25." Application of Kamerman, 278 F.2d 411, 412-413 n. 1 (2 Cir. 1960). 3 Gangewere v. Bernstein, 199 F.Supp. 38 (S.D.N.Y.1961); Robinson v. Rogers, 237 N.Y. 467, 470, 143 N.E. 647, 33 A.L.R. 1291 (1924). The New York Judiciary Law, § 475, 29 McKinney's Co......
  • Western Life Insurance Company v. Nanney, Civ. A. No. 2229.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • August 15, 1968
    ...Lewis, Esqs. of a lien for their services to her as attorneys, see T.C.A. §§ 29-202 and 29-203; Gangewere v. Bernstein, D.C.N.Y. (1961), 199 F.Supp. 38, 39-40 2, 4; cf. Cummings v. Patterson, C.A.Tenn. (1964), 54 Tenn.App. 75, 388 S.W.2d 157, 166 8; Falcone v. Hall, (1956), 98 U.S.App.D.C. ......

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