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First Department, March, 1910.

[Vol. 137. which it was contemplated it would be necessary for them to render when the agreement, if any, was made. Unless, therefore, they intended to insist upon an unconscionable demnand against their client, his testimony to the effect that it was agreed that they only claimed $250 for services rendered down to the time he made the settlement is not improbable, and it is corroborated to some extent by his letter of March twenty-fifth, written to them to which they took no exception, and by their letter written to him after they were aware that the Stokes matter had been settled, in which they requested a check for the bill which they had rendered for $250 retainer in that matter, and made no claim therein for further fees. Nor is it at all clear that they were at liberty to use their client's check which had been sent in full satisfaction for their fees in the Stokes matter without such act constituting an accord and satisfaction of any further claim they might otherwise have on account of their agreement with him; but even though technically it did not constitute an accord and satisfaction, it was not the proper course to have taken with their client. He had plainly asserted his understanding that this check was in settlement of all matters between them to May 1, 1907. They should at least have communicated with him stating their understanding of the agreement and have afforded him an opportunity to withdraw the check. They had a remedy for any legal claim which they had against him for services. Their conduct in accepting the check and at the same time repudiating the condition on which it was sent by their client is not commendable. When an attorney is retained to prosecute or defend a case, that constitutes, so far as his obligation to his client is concerned, an entire undertaking to conduct it through, and he cannot withdraw from the case without just cause. (Halbert v. Gibbs, 16 App. Div. 126, 129, and cases cited.) They were at liberty of course at any time for just cause to terminate the relation of attorneys and client existing between them and Rieser, but if they did that without just cause, they forfeited their cominon-law lien on the pleadings and papers in the Zimmerman action. It cannot fairly be said on the evidence in this record that Rieser did not make the claim that they had been paid in full for their services in the Stokes matter in good faith. They had received $250 for those services, which would seem to be reasonable compensation for the

App. Div.]

First Department, March, 1910. advice which they gave and for serving a summons and preparing a complaint. They were too hasty in the circumstances, and should have proceeded with the appeal in the Zimmerman case. By their letter of May thirty-first, therefore, they discharged themselves without just canse, and they lost any lien which they had as attorneys. (Matter of H- 93 N. Y. 381; Halbert v. Gibbs, 16 App. Div. 126; Tuck v. Manning, 53 Hun, 455; McKay v. Morris, 35 Misc. Rep. 571.) Counsel for Moss & Feiner, as I understand his argument, contends that, notwithstanding the fact that the attorneys refused without cause to longer represent their client in the Zimmerman action, while this might justify the order of substitution, it did not deprive them of their lien upon the papers in that action which are necessary to the proper conduct of the appeal therein. In such case the order of substitution would be fruitless without the papers. It cannot be that an attorney may abandon the cause of his client in the middle of the trial or on appeal when the immediate presence or action of an attorney is required, and thereby merely forfeit his right to be the attorney of record and to any lien upon the cause of action or counterclaim or final judgment, but retain a lien upon the papers which the client must discharge by paying any claim he may see fit to make for services in that or in any other actions or matter, or forthwith pay the amount which the court on a summary application may determine to be the value of his services. If such were the rule, the substitution would not accomplish the purpose for which it was intended. If the substitution occurred upon the trial of an action, it is manifest that it would be necessary for the substituted attorney to have all the papers in the action, but under the rule contended for by counsel for Moss & Feiner, he could not obtain them unless his client then and there yielded to the demnand made upon him or to any order summarily made and was able to comply therewith. An effort is made to distinguish the cases herein cited. They are in some respects distinguishable upon the facts and in the manner in which the question arose, but as we read them, they are authority for the proposition for which we are citing them. There are, of course, two classes of attorney's liens. One is a general common-law lien on papers, including money, which has come to be known as a retaining or possessory lien, and the other is a limited statutory lien upon the cause of action or First Department, March, 1910.

(Vol. 137. counterclaim, which has come to be known as a charging lien. (Goodrich v. McDonald, 112 X. Y. 157, 162; Matter of Lorillard v. Barnard, 42 Ilun, 545; Matter of Wilson & Grieg, 2 Civ. Proc. Rep. 343; Matter of Tollins, 197 Y. Y.361; Code Civ. Proc. $ 66; now Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35] $ 475.) In Motter of H- , Tuck v. Manning and JcKay v. Morris (supra), the questions arose over the assertion of the statutory or charging liens only; but the opinions do not indicate that any distinction was recognized between the two classes of liens with respect to a forfeiture of the right to a lien. If the right to a statutory lien may be declared forfeited on account of the refusal of the attorney without just cause to proceed so that he loses all right to a lien for the services rendered which are accepted by the client and substituted attorney and contribute toward the final recovery, it would seem on principle that he should lose his common-law lien on the papers in the action by unreasonably refusing to continue the service for which he was retained. Such was the case of Halbert v. Gibbs (supra), and although it does not appear that the question as to whether the order of substitution in that action required the delivery of the papers, that would seem to be the fair inference, since otherwise a discussion of the question of the lien would not likely have been indulged in by the court, and, moreover, the appeal was from an order denying a motion for substitution and for delivery of the papers, and the entire order which referred the question as to value of services was reversed and motion for substitution granted, which, I think, granted the motion as made.

It is further contended in behalf of Moss & Feiner that even though their client were at liberty to accept their letter of May 31, 1907, as a discharge of themselves as attorneys, still he did not do so, and he waived his right in that regard by further negotiations with them, and that before he finally employed other attorneys they withdrew from the position which they took in that letter and refused to consent to a substitution. On the reference Rieser was not interrogated with respect to any further conversations or correspondence between him and Moss & Feiner, but it appears from his moving attidavit that, acting upon their letter of May 31, 1907, he called upon Messrs. Douglas & Armitage and employed them to protect his interests and to be substituted in both litigations referred

App. Div.]

First Department, March, 1910. to in the correspondence, and that on the 22d day of June, 1907, he wrote Moss & Feiner, requesting them to furnish him with a consent to substitution of attorneys, and that in reply to that letter he received a letter from them under date of June 29, 1907, in which they say: “After careful consideration of the pending matters we fail to see why we should give a substitution in Zimmerman vs. Loft and Rosenthal vs. Rieser until yon make a fair disposition of the matters in dispute between us," and then asserted that they had a plain understanding with him; that there was no justification for the position which he took with respect to their fees, and drew attention to the importance of pressing the appeals in the Zimmerman and Rosenthal cases without delay, and said that if he could locate an exhibit in the Zimmerman case, which his representative mislaid, " the appeal in that inatter has every prospect of success, and if our relations were otherwise than strained, we would be only too pleased to put forth the necessary efforts to procure the reversal which we think you are entitled to in this case. The importance of the missing exhibit, however, cannot be overestimated, and every endeavor should be made to locate same.

“We shall be pleased to afford whomever you choose to substitute in our place every opportunity to conduct these appeals to a successful conclusion, and the papers and substitutions are ready to be turned over, but we feel that it is up to you to treat us fairly in the Rieser vs. Stokes matter before we should reciprocate in other matters.

“To bring the matter to a head, we will accept in full settlement the sum of $350 in Rieser vs. Stokes, plus our actual disbursements of $43.20 in Rosenthal vs. Rieser.

“If you will send us a check for this amount you can be assured of our best endeavors to facilitate you in other matters.”

Rieser does not state the date on which he first consulted Armitage, but I think it is fairly to be inferred that he did so before writing the letter of June twenty-second; but Armitage's affidavit indicates that it was later.

Much of the correspondence between Rieser and his attorneys was conducted in his firm's name, and it appears that under date of June 8, 1907, his firin wrote a letter to his attorneys as follows: “Our Mr. Rieser will see you soine day next week, regarding you

First Department, March, 1910.

[Vol. 137. to continue with the appeal for the various cases, and the matter of the fees.” With respect to that letter, Moss testified that he received it after Feiner left for Europe; that a week or two weeks thereafter Rieser called at the office and “ took exception to the bill that had been sent him in the Stokes matter;" that the bill was discussed at length, “and finally Mr. Rieser said something about having spent money for charity and lie would give me a $100 to call the matter off, and I said I wanted no charity. I wanted no friction so I said I would take $350 in settlement of the bill. He declined to do this and left the office.” The status of the Zimmerman case on May 27, 1907, was that the proposed case and amendments were pending settlement before the trial justice, having been submitted to him on the 21st day of May, 1907, and in that action judgment had been rendered against Rieser for about $1,700, and notice of appeal had been served and an undertaking had been filed to stay execution. It appears by the affidavit of Mr. Armitage, used in favor of the motion, that he was employed by Rieser in the month of June, 1907, to represent him in the Zimmerman case and to procure an order of substitution. He does not state the date of his employment. He does, however, say that at the time Rieser placed in his hands the letters from Moss & Feiner to their client of May 27, 1907, May 31, 1907, and June 29, 1907, from which it is argued that he must have been employed after June 29, 1907. His affidavit further states that he at once communicated with Moss & Feiner and requested them to forward a consent to substitution, which they refused to do on July 1, 1907, and that they also refused to turn over the papers in the action to him. He further states in his affidavit, which is verified on the 17th day of July, 1907, that the attorneys for Zimmerman claimed that the time to print the case on appeal had “long since expired” and that they had given notice that they would move to dismiss the appeal. We are of opinion that these facts do not show a waiver of the client's right to act upon the letter of May 31, 1907. At most there were subsequent negotiations and the client evidently was desirous of adjusting matters if he could on any reasonable basis, but he was unable to agree with his attorneys. He did not re-employ them after they had discharged themselves, nor did they further represent him in the action or even represent a willingness to do so. Moreover, we think that

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