
    Mertil Luikert and Emma Weill, Formerly Emma Luikert, Respondents, Impleaded with Alfred Luikert and Others, Appellants, v. Rosalie Luikert, Also Supposed to Be Rosalie Hill, Defendant. William L. Snyder, Respondent.
    
      Motion to compel an attorney to piosecute the action diligently or to stipulate that another attorney be appointed—in the order deciding the motion a referee should not be appointed to fx the attorney's compensation.
    
    Where the plaintiffs in an action make a motion to compel their attorney to proceed to prosecute the action diligently or to stipulate for the substitution of some other attorney, the court should not incorporate in the order denying the motion a provision appointing a- referee to determine the amount of the attorney’s compensation, where the right of the attorney to have his compensation so fixed was not litigated upon the motion and the moving parties object to its being so fixed.
    If the attorney deems that he is entitled to have the amount of his compensation fixed by a referee in a summary proceeding, he should be relegated to an independent motion for that relief.
    Appeal by the plaintiffs, Alfred Luikert and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 21st day of June, 1904, denying upon certain conditions the said plaintiffs’ motion to compel William L. Snyder, the plaintiffs’ attorney of record, to proceed with the trial of the action and appointing a referee to hear and determine the amount due said Snyder for his services.
    
      Edward J. Newell, for the appellants.
    
      Grenville T. Emmet, for the respondents.
   Hooker, J.:

This is an appeal from an order of the Special Term denying the motion of three of the plaintiffs to compel the plaintiffs’ attorney to proceed with the trial of this action upon condition that the original assignment equalizing the distributive shares of all the plaintiffs herein be delivered to the moving plaintiffs or their attorney, and upon condition that a stipulation of plaintiffs’ attorney be signed and delivered to them providing that the compensation .for the services of the plaintiffs’ attorney shall not be paid out of the share of the three moving plaintiffs, to an extent beyond their proportion with the other two plaintiffs. The order also provided that it be referred to a referee named therein to hear and determine the amount which the plaintiffs’ attorney is justly entitled to recover for his services in the action.

The complaint demanded relief in that a trust be impressed upon the property in question, the legal title to which was in the defendant, who is the mother of all five plaintiffs. The defendant answered, and the issues raised by the pleadings were tried in the year 1898, but no judgment resulted from that trial because of the expiration of the term of office of the judge before whom the case was tried. A year or two later the plaintiffs’ attorney obtained from the defendant a deed, declaring that she held the property in question in trust for all of the five plaintiffs, reserving to herself the income during her life, but the shares of the several plaintiffs in the trust deed were unequal. The three moving plaintiffs, who were not treated as liberally as their two remaining coplaintiffs, on discovering inequality, moved in December, 1903, to compel the plaintiffs’ attorney diligently to prosecute the action, or if he did not care to do so, to stipulate to a substitution of some other attorney. From aught that appears, no one of the plaintiffs has ever questioned the fact that the plaintiffs are entitled to share alike in the trust estate.

This motion was granted, and an order was entered directing the plaintiffs’ attorney, Snyder, to prosecute the action diligently. He noticed the case for trial, and made some move to have it preferred upon the calendar of the court. Subsequently and before any trial was had, he obtained from the two favored plaintiffs an instrument in which they sought to equalize the shares of all the plaintiffs in the trust fund, and, presenting this instrument with affidavits showing the state of the action, moved for a reargument of the motion to which reference has been made. This was opposed by the three plaintiffs appellant, but resulted in the order appealed from.

It appears from the briefs of counsel on both sides of this controversy that since the decision of the motion at Special Term the action has been prosecuted to final judgment in favor of the plaintiffs, by which they obtained all of the relief which they demanded in their complaint. The determination of the legal question, then, whether or not the motion to compel the plaintiffs’ attorney to proceed diligently with the trial or to consent to a substitution of some other attorney for the plaintiffs, becomes a mere academic proposition with which this court will not, under the circumstances, assume to deal. All of the relief which in any manner could have been obtained by the granting of the motion to compel the attorney to proceed diligently or consent to a substitution, has been effectually secured to all of the plaintiffs by the entry of the final judgment granting to the plaintiffs all the relief they demanded in their complaint.

The appellants also object to that portion of the order which refers the matter to a referee to determine the amount Snyder, as attorney for the plaintiffs, is justly entitled to be paid for lii's services in this action. We are of opinion that that portion of the order relating to the determination of the amount of the value of the attorney’s services was not warranted. The motion made by the three appealing plaintiffs was for an order compelling Snyder to proceed diligently or agree to a substitution, and that is the issue which was tried out on affidavits upon the first hearing of the motion, and upon the reargument as well, hfo facts appear from the affidavits, pro or con, touching the right of the attorney to have' his compensation fixed in this manner. And so far as the record shows nothing was presented to the court below to guide it in determining this question, except of course the general statements which show the history of the action and its then status. The appellants strenuously claim that they are entitled to have the amount of the attorney’s compensation fixed by a jury, and they claim that the attorney’s remedy in this ease is full and complete at law, and that no reason exists which would warrant the court in directing that the matter be determined summarily. In view of the position the appellants take, it seems clear to us that such an order should not be made as a rider upon the decision of a motion which involves quite another proposition, and that if the attorney deems he is entitled to have the amount of his compensation fixed in this way, he should be relegated to an independent motion for that relief. The orderly administration of justice would seem to require such a question to be determined only after a full and fair presentation of the facts and circumstances relied upon by both sides of the controversy, ppon papers directed to that question, to which none of the papers read upon the motion for the order under review was addressed.

The order should be modified by striking out the provision for a reference, without prejudice to the making of a motion to refer, •and as thus modified affirmed, without costs.

Hirsohbero, P. J., Bartlett, Woodward and Jenks, JJ., concurred.

Order modified by striking out the provision for a reference, without prejudice to the making of a motion to refer, and as modified affirmed, without costs.  