
    Albert P. Stewart, App’lt; John W. Steck et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 22, 1887.)
    
    1. Appeal—Review op record.
    The general term will not say whether or not the provisions of the Code have been violated when the order in question does not appear upon the record.
    2. Attorney’s lien—Substitution op new.attorney.
    Where the attorney has agreed to take his fees out of a fund to be recovered, and the substitution of a new attorney is obtained, the former retains his lien for services upon the fund recovered on the termination of the litigation.
    This action was brought by the appellant herein, Mr. Augustus P. Wageneiy on behalf of Albert P. Stewart, as colonel of the eleventh regiment, New York State Militia, the subject-matter thereof being a regimental fund in the hands of the defendant. After a considerable length of time, and various negotiations for settlement, the plaintiff became dissatisfied with his attorney and sought to have him removed, claiming that his attorney stood in the way of a settlement of the cause of action, and that the said attorney had made an agreement to carry on the litigation and wait for his pay until the fund was recovered, and then to accept a moderate compensation therefor. That in violation of this agreement he had demanded sums of money as a condition of further proceedings, which compelled the plaintiff to come to a settlement with the defendants, and that the plaintiff’s attorney, upon said settlement, made exorbitant demands in respect to his fees. The motion for a substitution came up before Mr. Justice Andrews, who denied the motion until the plaintiff’s claim for services was disposed of, and ordered a reference to determine the amount to Mr. R. M. Stover, an attorney of this court, as the parties could not agree upon the same.
    Mr. Stover thereupon reported that the attorney was entitled to $280 as his fees.
    The attorney having refused to take up this report, a motion was made to allow the plaintiff to pay the referee’s fees upon said reference.
    Decision was made that if the plaintiff should take up the report a substitution would be allowed resetting the present attorney’s right to be paid the full amount out of the fund thereafter.
    Subsequently, on the 3d of June, 1886, an order was entered reciting the foregoing facts, and reciting that it then appeared to the court that the plaintiff had taken up the report and complied with the condition contained in the last named decision, by which order it was ordered that J. K. Hayward, Esq., be substituted in the action in place of Augustus P. Wagener, as attorney for the plaintiff, and that said Wagener forthwith deliver to said Hayward all the papers in the action, and that Wagener retain his lien, not exceeding $300, upon the fund in question for the amount which will be found due him upon the confirmation of the referee’s report herein, which amount so found due is to be paid him out of said fund on the termination of the litigation in this action. Prom this order Mr. Augustus P. Wagener has taken this appeal.
    
      Augustus P. Wagener, app’lt, in person; J. K. Hayward, for resp’t.
   Van Brunt, P. J.

As to the objection that the court erred in overruling the stay claimed for non payment of costs of an order theretofore made, it is sufficient to say that no such order appears upon the record, and this court therefore cannot say as to whether provisions of the code were violated or not in reference thereto. It is true that Mr. Justice Andrews, upon hearing the motion before him, decided that a substitution could not be ordered until the claim of the attorney for services was disposed of; but he did not decide upon that motion that the agreement claimed by the plaintiff, that his attorney had undertaken to carry on the litigation and wait for his pay until the fund was recovered, had not been established.

All that he decided was, that some provision should be made for the attorney’s services before the substitution should be ordered. Upon the coming in of the referee’s report, Mr. Justice Donohue seems to have held that the contention of the plaintiff that the payments of the attorney were to be made out of the fund was established, and after the amount of the fees of the attorney had been ascertained by the referee, he provides for the substitution, and that the plaintiff’s attorney shall retain his lien upon the fund which was the subject matter of the litigation to the extent of the fees which the referee had reported.

In this way all the rights of the attorney seem to have been protected. He was entitled to the payment of his fees out of the fund. Those fees were duly ascertained by a reference, and, upon being ascertained, they were, by order of the court, made a. lien upón the fund, to be paid out of the fund on the termination of the litigation.

If the agreement, which was claimed upon the part of the plaintiff in the action in reference to the terms of the attorney’s compensation, was established, this was all that the attorney could require, and the order secured to him all the rights to which he was entitled.

The order appealed from must be affirmed, with costs.

Brady and Daniels, JJ., concur.  