
    In the Matter of the Application of James W. Nellis, Appellant, for an Order Requiring Henry M. Eldredge, Respondent, to Pay Over Moneys Received by Him Belonging to Your Petitioner Individually and as Special Guardian of Lester H. Nellis, an Infant.
    Third Department,
    November 14, 1906.
    Attorney and client — motion by special guardian to compel attorney to pay over moneys of infant — petitioner left to his action.
    An order providing for the application of the proceeds due an infant' after leave to mortgage his lands is directed to the special guardian of the infant and not. to the attorney. And' when ten years thereafter the special guardian begins a" summary proceeding to compel the attorney to pay over the proceeds of the mortgage and the attorney shows that he applied the proceeds as directed- by the special guardian,- the court in its discretion may deny the summary remedy and leave the petitioner to an action. The .granting of the summary "remedy against attorneys is Wholly within the discretion/>f the court.
    Appeal by the petitioner, James W. Hellis, from an order of the ■Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of -the county of Montgomery on the 22d day of August, 1906, denying the petitioner’s motion to compel the respondent to pay over certain moneys.
    
      J. S. Sitterly, for the appellant.
    
      Henry M. Eldredge, respondent, in person.
   Chester, J.:

The proceeding is one in form to require an attorney to pay over moneys alleged to have been received by him which belonged to his client. The moneys in question are alleged to have been received by the defendant ten years ago. It appears that the petitioner and his son, who was then an infant but who is now twenty-nine years of age, were tenants in common of certain real estate, and that the defendant acted as the attorney of record in proceedings taken in 1896 to mortgage the interest of such.infant in said real property for .the purpose Of paying prior mortgages thereon and paying debts incurred in erecting new buildings thereon. In such proceedings the petitioner was appointed special guardian of the infant, and the petitioner himself joined- in the mortgage, which was' for $3,000, and which was given to. one Isidore M. Lawrence. The petitioner claims that, he never has received any of the avails of said mortgage from Lawrence, nor from the defendant; that it was all paid to the defendant, and that he has not disbursed it as required by the order in said proceedings. The petitioner further claims that his son since becoming of age has commenced proceedings against him to compel him to render an account as such special guardian, and that the petitioner is not able to render such account until he can get an ■accounting from and a payment by the defendant of the moneys in-question.

The defendant, on the other hand, in answer to the petition, swears that all of said sum of $3,000 was paid to him by the petitioner to be paid out as the latter directed and that the same was paid as he directed and ordered and not otherwise. He further submits a verified and itemized statement showing the payment of all of said sum in various amounts and upon various dates between June and December, 1896. Such statement and the defendant’s affidavit show that considerable amounts of these moneys were paid by the defendant to .the petitioner in cash or in settlement of various notes or other of his obligations.; They also show the payment of considerable amounts as directed by the order in the proceedings to mortgage the property.

The court denied petitioner’s application without prejudicé to his right to bring an action for such relief as he may deem himself entitled to. The right to maintain a proceeding of this, character is not- an absolute one, but is subject to the discretion of the court. (Matter of Keeney v. Tredwell, 71 App. Div. 521.)

We think under the circumstances presented here the disposition made by the learned trial court was a reasonable and proper exercise of its discretion. This is not the ordinary casé of an attorney collecting money and withholding it from his client.

If,, as claimed by the.defendant, all of said sum of $3,000 has been paid out by him as directed by the petitioner and as seems probable from such statement, it would seem that he at least can have no just cause, for complaint, because the court declined to permit him to invoke the extraordinary powers resting in it by this summary proceeding to compel the defendant to again pay the moneys to him, in order that he may in turn account to His son. The directions of the order in the proceedings to mortgage, with respect to the application of the proceeds of the mortgage, was to the special guardian, who was this petitioner, and not to his attorney, and if, after the moneys have been paid to him- or pursuant to his direction, it appears that they have not- been fully applied in accordance with such direction it furnishes no reason why the court should proceed summarily against his attorney. If he has a grievance it was proper after the delay of ten years in moving to- leave him to his remedy by action. '

The order should be affirmed, with costs.

Order unanimously affirmed, with costs.  