Robinson v. Rogers
| Decision Date | 01 April 1924 |
| Citation | 237 N.Y. 467,143 N.E. 647 |
| Parties | ROBINSON v. ROGERS et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Caroline M. Robinson against Hubert E. Rogers and others. From order of Appellate Division (201 N. Y. Supp. 941) modifying and affirming order of Special Term granting plaintiff's motion for substitution of attorney, Leslie C. Ferguson, plaintiff's former attorney, appeals.
Reversed and remitted to Special Term.
See, also, 237 N. Y. 525, 143 N. E. 728.
Appeal from Supreme Court, Appellate Division, First Department.
Leslie C. Ferguson, of New York City, in pro per.
Hill, Lockwood & Redfield, of New York City (M. A. Willment, of New York City, of counsel), for respondent.
The plaintiff began this action in March, 1920, to secure a determination that the title to certain property was held by the defendants only as security for loans made and that the plaintiff had a right of redemption. An interlocutory judgment in plaintiff's favor directing a reference to ascertain the amount due from the plaintiff to the defendants has been entered and affirmed on appeal by the Appellate Division. Thereafter an agreement or stipulation was entered into between all the parties to this action for a settlement of all matters in controversy between them, on condition that, upon the transfer and delivery to the plaintiff of the property which was the subjectmatter of the action, the plaintiff should pay the amount of defendants' lien thereon which by agreement was fixed at the sum of $65,000 as of December 31, 1922, subject to adjustment by reason of payments made since that date. In order to pay the defendants the amount of the lien, the plaintiff must borrow the money upon the security of the same property, or some of it. Her attorney, Leslie C. Ferguson, has given notice to the defendants that he claims an attorney's lien on this property and has thereby rendered the use of the property as security for such a loan inconvenient if not impossible. The plaintiff thereupon moved for a substitution of attorneys and for the appointment of a referee to take proof as to the amount of compensation the plaintiff is entitled to receive in this action and in other matters and proceedings and the amount, if any, of the lien of the said Ferguson for his services in this action, for his disbursements and for any other services after crediting the plaintiff with all sums to which she is entitled to credit. The justice at Special Term granted the motion for a reference and by order provided for a substitution of attorneys, and a reference to take proof of ‘the amount due by the plaintiff to said attorney Leslie C. Ferguson for legal services rendered by him.’ The order further directed that, upon the delivery of the property held by the defendants to the plaintiff, the plaintiff should deliver or file a surety company bond in the amount of $50,000, ‘conditioned that the plaintiff will pay to the said Leslie C. Ferguson any sum which may be finally determined to be due him by her for legal services rendered in this action,’ and that upon the delivery or filing of said bond, ‘said properties so delivered to the plaintiff shall be freed of any lien the said Leslie C. Ferguson, Esq., may have as attorney of record in this action and that the defendants shall be released from any liability for any lien he may have on said properties by reason of their delivery to the plaintiff,’ and that the attorney should thereupon deliver to the plaintiff or her substituted attorney all papers and records in his possession. Upon appeal to the Appellate Division the order was modified in somewhat unimportant details and otherwise affirmed.
[1][2] The plaintiff had an absolute right to discharge her attorney with or without cause, and the court could authorize the substitution of a new attorney ‘on such terms as shall be just.’ Rules of Civil Practice, rule 56. A change of attorneys obviously does not in itself discharge the client from the obligation to pay the attorney for past services. In order to secure such payment the attorney has two kinds of lien-a general lien for the entire balance of account on all papers, securities, or moneys belonging to his client which came into his possession and a charging lien for services rendered in a particular action or proceeding upon his client's cause of action. The general or retaining lien is dependent upon possession; the charging lien was created to ‘save the attorney's rights where he had been unable to get possession.’ Matter of Heinsheimer, 214 N. Y. 361, 365,108 N. E. 636, 637 (Ann. Cas. 1916E, 384).
[3][4] The order under review protects the attorney's claim for compensation by requiring the delivery of a surety company bond for $50,000, but it directs the attorney to deliver to the plaintiff or her substituted attorney all papers and records in his possession, and by such delivery the attorney will necessarily lose his lien thereon, for that lien is dependent upon possession, and it in terms frees the property subject to the charging lien from the burden of that lien. This appeal presents the question whether the court has power to destroy an attorney's lien upon the substitution of some other form of security which in the opinion of the court affords the attorney adequate security for the payment of his compensation.
Both kinds of liens were originally created by the courts for the protection of attorneys as officers of the court, and it is urged that the courts which created the liens may also determine that in any given case the lien must be released upon the filing of a bond or the giving of other security. It is true that the courts of this state have, in many cases, ordered attorneys to deliver to their clients papers and records received by the attorneys in the course of litigation, though through such delivery the attorney's retaining lien was destroyed. No case has been called to our attention where this court has considered the basis or reason for...
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