
    In the Matter of Emmeline Cartier, Appellant, v. William R. Spooner, Respondent.
    First Department,
    March 22, 1907.
    Attorney and client — summary proceedings to compel- attorney to pay ' over — reference to hear and determine not authorized.
    In a summary proceeding on a petition of a client to compel an attorney to pay over moneys the court must determine the controversy, and a reference is merely for the purpose of assisting the court.
    Such referee has no power to hear and determine, and even when by error authorized to determine, no judgment can he entered except, by direction of'the court.
    Section 1228 of the Code of Civil Procedure, providing for the entry of judgment upon the report of a referee, has no application to such special proceeding.
    A motion to set aside a judgment in such proceeding .erroneously entered on the report of a referee without confirmation by the court is not governed by section 1282 of the Code of Civil Procedure requiring that a motion to set aside a judgment must be made within one- year from its entry, nor are the provisions bf sections 1290 and 724 of the Code applicable.
    Appeal by the petitioner, Emmeline Cartier, 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 14th day. of January, 1901, denying the- petitioner’s- motion to set aside a judgment entered in said clerk’s office on the 19th day of December, 1905.
    
      Leon Lauterstsin, for the appellant.
    
      William Li. Spooner, in person, responded*.
   Houghton, J.:

In April, 1904, the respondent, as attorney for the petitioner, collected, for her from a benevolent life insurance order a claim of $8,000. In August following proceedings were begun by petition and order to show cause to compel the respondent to pay to the petitioner such money, and-$l,963.21 was paid to her, the respondent retaining the sum of $1,036.19 as his fees and disbursements. The retention of this sum was not satisfactory to the petitioner, and the proceeding resulted on the 24th day of February, 1905, in an order of reference to determine whether or not a proper sum had been retained. This order of reference provided that the referee should hear and determine the amount due. Hearing was had before the referee and on his report in favor, of respondent, without application to the court or confirmation, judgment was entered on the 19th day of December, 1905, in the clei-k’s office of Hew York county, against petitioner for $913.10, referee’s and stenographer’s fees, and execution directed thereon. On the 1st day of March, 1906, petitioner moved to set aside such report and for leave to tile exceptions thereto. The motion to set aside was denied, and leave to tile exceptions nunc fro tuno was granted. On the 2d day of January, 1907, the petitioner moved to .set aside the judgment entered December 19, 1905, and from the denial of such motion this appeal is taken.

There is no autlioi'ity for the entry of a judgment -in a special proceeding of this character. The petitioner was a client of the respondent, an attorney of this court. He had moneys in his hands which, as attorney, he had collected for her, and upon which he had a lien for compensation for his services, measured in the absence of any specific legal agreement therefor by their fair value. "Under the provisions of section 66 of the Code of Civil Procedure, the client, this petitioner, had the right to present her petition to this court to have the amount of such compensation and lien determined. Such a proceeding, instituted by petition, is not an action but is a special proceeding, and no formal judgment can be entered thereon. ( Ward v. Ward, 67 App. Div. 121.)

The Supreme Court has inherent power over its attorneys at law to compel them to deal fairly with their clients, and if an attorney has in his hands moneys belonging to the client, collected by him as such attorney, upon which he has no lien for compensation, the court will deal summarily with him and enforce its payment as for a contempt. (Matter of Bornemann, 6 App. Div. 524; Matter of Langslow, 167 N. Y. 314; Code Civ. Proc. §§ 14, 2266 et seq.)

Section 1228 of the Code of Civil Procedure, providing that judgment may be entered upon the report of a referee, has no application to a special proceeding instituted as this-was, notwithstanding the provisions of the order that the referee should hear and determine the matter. That section appears in chapter 11, and under title 1 of such chapter, which is entitled “ Judgment in an action.” In the present case there was no action, and notwithstanding the provisions of the order, it was necessary that the referee’s report be presented to the court for confirmation, and upon such • motion the court was called upon to exercise its judgment and confirm or reject it and decide the matter for itself.

In a procéeding of this character the court must determine the controversy, and it may order a reference only for the purpose of assistance to itself in that regard. It cannot shift the whole matter to a referee. If a reference be ordered, the matter must come back to the court on the report of the referee fos* final determination, and the report may be adopted or disregarded and a different decision made on the facts. (Matter of Ney Co., 114 App. Div. 467; Marshall v. Meech, 51 N. Y. 140.)

Such being, the proper practice of the court, the order, although in form to hear and determine, must be deemed to be the.order which the court had the tight to make and must be considered as an order to hear and report. (See McCleary v. McCleary, 30 Hun, 154; Bantes v. Brady, 8 How. Pr. 216.) The respondent having ‘ obtained from the referee a report in his favor should have presented it to the court for confirmation instead of entering judgment thereon as was done.

It is insisted, however, that the appellant is too late in making her motion to set aside the judgment, in that she did not move within one year from its entry as prescribed by section 1282 of the Code. That section relates to the setting aside of judgments for .irregularity, and provides that such motions shall not be made after the expiration óf one year from the filing of the judgment roll. The entry of judgment herein was not an irregularity. It was a nullity because there was no authority for its entry.

We do not think the petitioner’s motion came within the provisions of the above section or within the provisions of sections 1290 or 124 of the Code. But if it did, the court has inherent power over its judgments and is not limited by the provisions of those sections (Furman v. Furman, 153 N. Y. 309; Ladd v. Stevenson, 112 id. 325), and the present instance is a case in which that power should be exercised in the furtherance" of justice. All the facts are not before ns, but, so far as they appear, both the expenses of the reference and the compensation of the attorney are unreasonably large. On a presentation of the report of the referee to the Special Term for confirmation, however, the whole matter can be determined.

The order must be reversed, with ten' dollars costs and disbursements, and the motion to set aside the judgment granted, with ten dollars costs.

Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.  