
    William H. Kent, as Administrator, etc., Resp’t, v. William Rockwell et al., App’lts. Jane Learey, Resp’t, v. Same, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Attorney and' client—Summary proceeding.
    An attorney cannot, in summary proceeding to compel payment over of his client’s money, deny that he received the money, where he assumed control of it and directed its payment by the actual custodian to a third person for his own benefit.
    Appeal from orders in summary proceedings, compelling attorneys to pay over certain moneys of the petitioner’s alleged to be in their hands.
    
      Joseph P. Joachimsen, for app’lts ; Charles N. Judson, for resp’ts.
   Dykman, J.

These are two proceedings against William Rockwell and Charles J. Pierson, who are attorneys and counselors at law, to compel the payment over of money which was received in a fiduciary capacity for their clients. They are considered in connection with each other, because to a certain extent the control-in g facts are the same in each.

On the 16th day of January, 1893, Mary Kent made an application to the court at special term to compel the appellants to pay over certain moneys which they had received for her. That application was based upon a petition which stated substantially that she, with two of her sisters, Jane Learey and Esther Foster, defendants in an action for the partition of real property, and employed the appellants as their' attorneys in that suit; that- such proceedings were had in that action that the premises were sold under the direction of the court, and the petitioner was entitled to realize from the proceeds of' such sale, as her distributive share, the sum of $686.48, and that her two sisters were each entitled to receive a similar sum; that the appellants received from the referee the sums so belonging to each of the three defendants, and received for the petitioner the sum of $686.48, besides the sum allowed to the appellants for costs in that action; that the appellants had paid to the petitioner the sum of $300, but have neglected and refused to pay over the balance,—and the petitioner prayed for an order directing the appellants to pay over to the petitioner the balance remaining in their hands, to wit, $386.48, or show cause why an attachment should not issue against them. Upon that application, William Rockwell, one of the appellants, presented an affidavit in which he stated substantially that they were practicing attorneys and counselors of the supreme court, and were retained by the petitioner as her attorneys in the partition suit; that on or about the 15th day of December, 1892, his firm received from the referee the sum of $686.48, being the share allowed to the petitioner, Mary Kent, and on the same day paid to her the sum of $300, stating at that time that it was not to be considered as a settlement, but that his firm would be obliged to wait for the bill of other attorneys, necessarily employed by them in the conduct of the defense in that action, before they could render a complete and final settlement; that the bill of costs of his firm amounted to $215, $150 of which was an allowance made by the court. Upon the petition and affidavit so presented it was decided at special term that the appellants should pay over the balance of the money which they had so received for the petitioner.

No formal order was entered upon that decision, and about the 7th day of February, 1894, during the pendency of the proceed- „ ings, the petitioner, Mary Kent, died, and William Kent was appointed the administrator of her estate by the surrogate of Kings county. He qualified as such administrator, and entered upon the discharge of his duties. After he was so appointed, he presented a petition to the supreme court at special term, in which he recited the previous proceedings on the part of his intestate for the procurement of the money, and that she had died, and he had been appointed the administrator of her estate, and that he was desirous of continuing the proceedings, and asked for an order continuing the same in his name. On the 26th day of January, an order was made directing the proceedings tobe continued by William H. Kent, as administrator of the said petitioner, Mary Kent, deceased, and that he be substituted as the petitioner in her place,-to be allowed to amend their petition forthwith, and that the amended petition be filed as the petition of the administrator in this proceeding. Thereupon the administrator presented a second petition to the court at special term, in which he substantially recited the facts which had been stated in the petition of his intestate, and prayed that the appellants be directed to pay over to him, as such administrator, the balance remaining in their hands which belong to his intestate. In answer to that petition, William Rockwell made an affidavit, in which he stated substantially that his firm never actually received the full amount of the shares of Mary Kent, Jane Learey, and Esther Foster, bo wit, $2.059.44, and only received the sum of $1,282, of which they have paid to Mary Kent, Jane Learey, and Esther Foster each $300, making an aggregate of $900, and since that time they have paid to Mary Kent and Jane Learey the sum of $190 eacli additional; that, before any moneys were received by them, they gave an order to their landlord upon the referee for the sum of”$772.38 for rent, which was due from them to their landlord, to be deducted from the moneys in his hands as such referee; that such order was presented by the person to whom it was given to the referee, and he paid the same to him, and deducted the amount thereof from the sum which should have been paid to the three defendants, Kent, Learey, and Foster, and paid only the balance thereof to the appellants—and he, therefore, asked that the application be dismissed, or that it be decreed, if any sum be paid by his firm to the petitioner, that it will be only the sum of $37.33, that being the only sum they had actually received in excess of what they paid. William Rockwell made a second affidavit in the same proceeding on the 3d day of November, 1894, in which he stated that the first affidavit made by him in answer to the petition presented by Mary Kent was made hurriedly, and under a misapprehension of the legal effect of the facts which were set forth in his last affidavit. Thereupon an order was made at the special term that the appellants pay to William H Kent, as administrator, or to Charles Judson, his attorney, the sum of $296.48, with interest from December 15, 1892; and from that order Rockwell and Pierson the attorney, have appealed to this court.

In the case of Mrs. Learey, the facts and proceeding are substantially the same down to the first affidavit made by William Rockwell in answer to tbe petition presented by Mary Kent in the first instance. But in the Learey case the decision was in favor of the petitioner, and an order was made on the 17th of October, 1894, directing the appellants to pay over the balance of $296.48, which remained unpaid upon that portion, to the petitioner, Mrs. Learey. Thereupon William Rockwell procured an order requiring the petitioner, Mrs. Learey, or her attorney, to show cause at a special term of the supreme court in Brooklyn on the 3d day of November, 1894, why the order made on the 17th day of October, 1894, should not be vacated and set aside, and why there should not be a reargument of the motion, and why the petition of Mrs. Learey should not be dismissed. That application was based upon an affidavit of William Rockwell which stated substantially the same facts as the affidavit made by him in answer to the petition of William H. Kent, as administrator. This last affidavit contained also a statement that, through inadvertence or misapprehension, the view of the case stated there was not thoroughly, if at all, presented on the hearing of the original motion. Upon the hearing of that application the motion for reargument was denied; and from the order denying that motion to vacate and set aside the original order, and to grant a reargument of that motion, the attorneys, Rockwell and Pierson, have appealed.

There is no appeal in this Learey case from the original order, so that the only question before us in the Learey case has reference to the denial o! the motion for a reargument of the original motion; so that the questions now for determination relate to the appeal from the order made in favor of the administrator of the original petitioner for the payment of the money to him, and the denial of the motion for reargument in the Learey case. We do not see how the failure by the lawyers to receive all the money belonging to their clients can exempt them from liability, in view of the cause of such failure. In reality and in legal contemplation, the appellants did receive the money. They assumed control over it, and instead of taking the money themselves, as they were at liberty to do, and paying it to their landlord, they directed the actual custodian of the fund to pay it to him. What they so did by the referee, in the eye of the law, they did themselves, and it was equivalent to receiving the money themselves. The attorneys perpetrated a wrong upon their clients when they used the money in the hunds of the referee to pay their own debt, and it would constitute a violation of legal principles to permit them to profit by their own wrong. Moreover, if that act furnished immunity to the attorneys, the referee would remain responsible to the parties, which would be very unjust as between him and the lawyers.

Both orders should be affirmed, with $10 costs and disbursements in each case. All concur.  