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First Department, March, 1910.

which he could not be deprived without due process of law, which in such case means that the proceedings affecting his rights must be had in substantial accordance with the provisions of the constitution and by-laws, and he must be afforded an opportunity to be heard in defense of any charge made against him.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion for an alternative writ granted, with ten dollars costs.

CLARKE, MCLAUGHLIN, SCOTT and DowLING, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion for alternative writ granted, with ten dollars costs.

In the Matter of the Application of ELY J. RIESER, Appellant, Respondent, for an Order Substituting New Attorneys for Messrs. Moss & Feiner, His Attorneys, Respondents, Appellants, in a Certain Action Entitled "Louis J. Zimmerman, Plaintiff, v. George W. Loft and Others, Defendants."

First Department, March 11, 1910.

Attorney and client common-law lien effect of refusal to prosecute cause - withdrawal from one cause because of dispute in regard to another - retaining lien and statutory lien - reference.

An attorney at law may for a just cause terminate his relation with his client, but, if he do so without justification, he forfeits his common-law lien on the pleadings and papers in the action.

In the latter case, where the client moves for the substitution of attorneys, the former attorney should be required to turn over the pleadings and papers in the action without imposing conditions.

Where an attorney, after having been retained by a client in two actions, refused to proceed in one of them because of a dispute between himself and the client respecting sums due the attorney in the other action, which the client settled, he discharged himself as attorney without just cause and lost any any common-law lien upon the papers in the pending action.

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[Vol. 137.

Where an attorney is retained to prosecute or defend a cause, there is, so far as his obligation to his client is concerned, an entire undertaking to carry it through, and he cannot withdraw from the case without just cause.

An attorney at law has two liens; a common-law or retaining lien on papers and money which have come into his possession during the progress of the action, and a limited statutory lien on the cause of action or a counterclaim known as a charging lien.

There is no difference between the two liens as regards a forfeiture of the right thereto.

Evidence examined, and held, that the client, by negotiating with his attorney after a notice by the latter that he refused to go on with the case, did not waive his right to act upon the refusal and substitute other attorneys.

A determination as to whether or no an attorney has a lien should be made without a reference in order that the parties should not be put to the expense thereof.

SEPARATE APPEALS by the petitioner, Ely J. Rieser, and by his attorneys, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1909, the appeal of the former being from the entire order and that of the latter from so much thereof as modifies the report of the referee by reducing the amount due to them from the petitioner from $600 to $250, and from so much thereof as further modifies the report of a referee by providing that the lien of the attorneys was discharged by the execution and filing of an undertaking pursuant to an order of the court and by their surrender of the papers in the action, which modification was made upon the ground as stated in the order that the bond was intended to and did take the place, as security, of the lien discharged by the surrender of the papers.

Paul Armitage, for the appellant and respondent Rieser.

Louis Salant, for the respondents and appellants Moss and Feiner.

LAUGHLIN, J.:

This proceeding arose on the application of the appellant Rieser for a substitution of Messrs. Douglas & Armitage for Messrs. Moss & Feiner as his attorneys in this action brought by Zimmer

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First Department, March, 1910.

man against himself and others in the Supreme Court, and for a direction that they be required to turn over the pleadings and other papers in the action. Moss & Feiner were at that time attorneys of record for Rieser in another action, but the motion was limited to the action brought against him by Zimmerman and to the pleadings and papers thereon, and it does not appear that it embraced or that the order was intended to include any papers other than those which were indispensable to the proper representation of his interests in the action by the substituted attorneys.

The motion came on for a hearing at the Special Term on the 24th day of July, 1907. The court granted an order of substitution and directed Messrs. Moss & Feiner to deliver the pleadings and other papers to Messrs. Douglas & Armitage within five days after the execution and filing by the client of a bond with sureties to be approved by the court in the sum of $1,500 conditioned for the payment of " any sum or sums which may be hereafter established in this proceeding to be due and owing by the said Rieser to Moss & Feiner for professional services, and for which they have a lien upon the papers herein" and the order referred it to an attorney and counselor to take proof as to what sum, if any, was due or owing by Rieser to his attorneys "for any and all professional services or disbursements, and for which they have a lien upon the papers in the above-entitled action." No evidence was offered before the referee and no claim was made that there was anything due or owing to the attorneys from their client for services or disbursements in the action brought by Zimmerman, or that by reason of anything done or agreed to be done by them in that action they had any lien upon the papers. It was, however, shown and found that the attorneys were employed by Rieser on or about the 2d day of October, 1906, with respect to a controversy existing between him and one Stokes, based on a contract between them by which Rieser was to manufacture and deliver certain fixtures and trim to Stokes to be used in the construction of the Hotel Ansonia. The attorneys and their client disagreed with respect to the terms of their employment in that matter. They agreed that the attorneys were employed to begin and prosecute an action for Rieser against Stokes for a breach of the contract, but the attorneys claim that there was an express agreement by which they were to receive

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[Vol. 137.

for their services the sum of $250 for services rendered in the matter before the express agreement was made and $250 for future services to be rendered in the action and ten per cent of any amount recovered by their client "by way of settlement, judgment or otherwise," which, however, was not to exceed the sum of $500. The client denies that this agreement was made and claims that the attorneys were acting under a general retainer. The negotiations which the attorneys claim resulted in the express agreement were conducted in part by writing and in part by personal interviews and communications by telephone. On the 2d day of October, 1906, the attorneys wrote their client stating that they desired to confirm their conversation with him over the telephone that day relative to their fees in the Stokes matter, and in that letter stated that their understanding of the agreement was as they now claim. The client did not reply to that letter, or, as he testifies, "I paid no attention" to it. The attorneys commenced the action by serving a summons and Stokes appeared therein on the 7th day of November, 1906. Thereafter and on the 28th day of December of the same year the client by advice of the attorneys sold the fixtures and trim which he had manufactured for Stokes but had not delivered, at public auction, and they were bid in for him by his brother for the sum of $4,000. Stokes bid $3,250 on the sale. Subsequently negotiations were opened between Stokes and Rieser as a result of which they made a formal agreement for a settlement of their differences on the 11th day of March, 1907, by which Stokes was to accept the fixtures and trim and pay the sum of $3,500, and according to the last testimony by Rieser which changed his former testimony with respect to the time, this was consummated on the 15th day of April, 1907, and mutual releases were executed, as Stokes asserted claims for damages and the right to a lien on the undelivered fixtures and trim on account of advance payments. The attorneys after the settlement and discontinuance of the action claimed, in addition to the two items of $250, the further sum of $350, being ten per cent of the amount which their client received from Stokes. A disagreement thereupon arose between them. The attorneys were aware of the fact that negotiations were pending between Rieser and Stokes for a settlement, and he had on that account withheld the verification of the complaint which they sent to him on the 8th day of February, 1907. On

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First Department, March, 1910.

the 25th day of March, 1907, he wrote his attorneys in reply to an inquiry made by them with respect to the verification of the complaint, saying: "I am negotiating toward a settlement with Mr. Stokes; for this reason would prefer you to wait a little longer, so that I will save the expense of attorneys, etc., and principally my time; for this reason, you need not do anything regarding this, until you are further advised." The attorneys did not reply to this letter or in any manner inform their client in writing or verbally that their fees would be the same even though the client settled the case. They seem to have taken virtually the same position with regard to their client's claim that he took with respect to theirs, viz., that a contract could not be made or changed by the assertions of one party. The attorneys also claim that Rieser was not entirely frank with them concerning this settlement, and that it had been fully consummated before he wrote the letter. They base their claim on his testimony. His first testimony on the subject affords a basis for their contention, but later he distinctly modified it, and a check and his books were given as the reason therefor. If they were disposed to question this correction in his testimony they could have definitely settled the point by requiring the production of the check or books or calling those who represented Stokes. Rieser testified that before settling with Stokes he telephoned his attorneys and talked with Feiner with a view to ascertaining what their charges would be to that date, and was informed that they would be $250. The attorneys had rendered their client a bill under date of December 27, 1906, which contained certain charges for services and disbursements not in question here, and a charge of $250 "to retainer in Rieser vs. Stokes." He had not settled this bill at the time he claims to have had the conversation over the telephone with Feiner. On the 13th day of April, 1907, the attorneys for Stokes wrote Moss & Feiner stating that their client and Rieser had settled their differences and requesting the execution of a stipulation for a discontinuance of the action. The attorneys then wrote their client under date of April 15, 1907, asking for a confirmation of this notice of settlement, and requesting a check "for bill rendered," but made no further claim at that time. Rieser testified that pursuant to the understanding which he had with Feiner in the conversation over the telephone he inclosed a check to them with a letter under date