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 you 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 matter 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 firm wrote a letter to his attorneys as follows: "Our Mr. Rieser will see you some 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 he 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 App. Div.] First Department, March, 1910. the right of the client to an unconditional substitution does not depend upon the fact that the attorneys volunteered to consent thereto and to surrender the papers, but upon the fact that they unreasonably refused to further represent him. It was intended that the bond should be substituted for the papers in the action, and that if the attorneys had a right to any lien, they should have the benefit of the bond; but as we view the evidence, the attorneys forfeited their lien and, therefore, they must be left to their remedy at law. We must again draw attention to the importance of deciding whether or not an attorney has a lien and the amount thereof, without a reference. It would have been unjust and a hardship on the client to bear the large expense of this reference, had the attorneys established a lien, and it will be a hardship on the attorneys to bear the expense on their failure to establish a lien. The expenses, however, have been incurred, and they must be borne by the attorneys who asserted a lien which they had forfeited. Some embarrassment arises from the fact that there was no appeal in advance from the order of substitution and reference, and it is stated in the points for the attorneys that an appeal was taken therefrom by Rieser after he took this appeal, and that it was dismissed. It is not contended that the order of reference adjudges that the attorneys have a lien upon the papers and that it was only intended to refer the question with respect to the amount thereof, but it is claimed that, if they have no lien, that should have been decided without a reference, and that Rieser, by proceeding with the reference and not appealing from the order, should not now be heard to contend that they have no lien. Evidence was given on the reference bearing upon the question of the right to a lien and having no bearing upon the value of the services, and the referee understood that he was to take evidence and report on the question as to whether there was a lien, as well as on the question as to the amount, and he did report on both points. We are of opinion, therefore, that the order should be construed as leaving the question as to whether there was or was not a lien open until the coming in of the report of the referee, although its phraseology is not perfectly clear. It follows, therefore, that the order should be reversed in so far as it adjudges that the attorneys had a lien, in so far as it adjudges First Department, March, 1910. [Vol. 137. the amount owing by the appellant Rieser to them or in so far as it awards the payment thereof, and in so far as it adjudicates the liability for costs, with ten dollars costs and disbursements to the appellant Rieser, and the report of the referee should be modified so as to adjudge that the attorneys forfeited their lien, and as thus modified confirmed, with ten dollars costs and disbursements to appellant Rieser if they have been paid by him, and otherwise, by directing Moss & Feiner to pay the same. INGRAHAM, P. J., CLARKE, SCOTT and MILLER, JJ., concurred. Order reversed to extent stated in opinion, with ten dollars costs and disbursements to appellant Rieser, and report of referee modified, and as modified confirmed, with costs, as stated in opinion. Settle order on notice. FRANK RANDO, Appellant, v. THE NATIONAL PARK BANK OF NEW YORK, Respondent. First Department, March 11, 1910. Judgment - when action on judgment premature-right to offset judgment - court may grant leave to sue on judgment as counterclaim. Leave to sue upon a judgment should not be granted until it is about to expire for it does not serve to protect any right of the judgment creditor, and is prejudicial to the debtor in that he will be liable for additional costs. But where a defendant is sued for conversion of goods the court may grant him leave to bring an action to offset a prior judgment in his favor against the plaintiff on the acceptance of a draft accompanied by a bill of lading for the same goods, or to plead such judgment as a counterclaim to the action for conversion. It seems, that an action to set off a judgment in favor of the plaintiff against a judgment in favor of the defendant is an action on the judgment, and hence leave of court is necessary to authorize a defendant to bring an independent action to set off a judgment against a pending action. It seems, that a defendant may counterclaim judgment in his favor as a set-off to extinguish or reduce the recovery in a pending action; but in such case there is a risk of extinguishing the judgment even though the plaintiff fail to establish a cause of action unless the record shows that the plaintiff's cause of action is not sustained. The same would be true if the plaintiff establishes a cause of action for less than the amount of the defendant's judgment, for such is the rule applicable to set-offs. App. Div.] First Department, March, 1910. APPEAL by the plaintiff, Frank Rando, 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 24th day of November, 1909, granting leave to the defendant bank to bring an action against the plaintiff upon a judgment recovered by it against him in the Supreme Court on the 15th day of May, 1909, for the sum of $12,978.90, or at the option of the defendant, to serve an amended answer herein setting up said judgment as a counterclaim. George A. Baker, for the appellant. Louis F. Doyle, for the respondent. LAUGHLIN, J.: The pleadings in this action are not in the record, but it appears by affidavit that it is brought to recover the sum of $16,500 for the conversion of coal, and that the judgment which the defendant recovered against the plaintiff was on the acceptance of a draft accompanied by a bill of lading for the same coal. The question as to whether the judgment is a proper counterclaim to the plaintiff's cause of action is not presented for adjudication, and doubtless that question should be left to be determined upon the trial of the issues. The questions argued on this appeal relate to the jurisdiction of the court to grant leave to plead a judgment as a counterclaim and to the propriety of granting such leave and not to the question as to whether the judgment in question is one that may be so pleaded. It is contended in behalf of the appellant that the Legislature did not intend by section 1913 of the Code of Civil Procedure to authorize the court to grant leave to sue upon a judgment until the lien thereof was about to expire, and that it was not contemplated that leave was to be granted for the purpose of pleading the judgment as a counterclaim. We agree with this contention to the extent that leave should not and probably could not be granted at this time to sue upon the judgment merely for the purpose of reviving it as a lien, for that would not be necessary for the protection of any right of the defendant and would be prejudicial to the rights of the plaintiff and oppressive, for the reason that it would result in the recovery of additional costs and in placing upon the records another judgment, |