
    Robert A. McKeon, Plaintiff, v. Peter Smith, Appellant, Impleaded with Maue Oil Company, Inc., and Richfield Oil Corporation, Defendants, Herbert C. Gerlach, Attorney, Respondent.
   Resettled order reversed on the law and the facts, with ten dollars costs and disbursements, and matter remitted to the Special Term to determine the fair value of respondent’s services to appellant down to the time when he was notified by appellant that he was no longer his attorney; for which period, in our opinion, he is entitled to compensation. Lazansky, P. J., Young, Kapper and Tompkins, JJ., concur; Carswell, J., dissents and votes to modify the order by striking therefrom the provision directing the payment of money to respondent, and as modified to affirm for the reasons: (1) There is no basis in this record for the fixation of any allowance of counsel fee; (2) the conduct of the respondent in acting as attorney for Maue on the motion to intervene and particularly in respect to the attitude of hostility to his client Smith, manifested on that motion, disabled him from claiming compensation for services as a condition for the substitution of another as Smith’s attorney. This position of hostility no doubt was taken with good motives because of a belief that Smith had taken an unjust position with respect to the contract of August 5, 1930. However, the respondent was Smith’s attorney at that time and owed him such a degree of duty that he was not free to take an affirmative position of hostility to his own client on behalf of Maue, even though he believed that Maue’s position with respect to the August 5, 1930, contract was the just one. (Andrews v. Tyng, 94 N. Y. 16; Chatfield v. Simonson, 92 id. 209, 215; 2 R. L. C. 974, 1062; Field v. Moore, 189 App. Div. 709.) [See post, p.-.]  