
    Ackerman v. Wagner.
    
      (Supreme Court, General Term, First Department.
    
    January 24, 1890.)
    1. Attorney and Client—Compensation of Attorney.
    On application by a guardian to compel an attorney to pay over his commission, it appeared that the guardian had acted as such for 18 years, his commissions for the whole time amounting only to S71. He settled his account, and placed the money he held in the attorney’s hands. Afterwards he demanded his commission, but the attorney refused to pay it, claiming that in addition to the costs of the proceedings, which he had received, he was also entitled for his services to the guardian’s commissions under their agreement. This the guardian denied, and his denial was supported by the affidavit of the attorney who had acted for him iñ the settlement. Held, that as the services of the attorney were simple, and the commissions of the guardian small for the long time he had acted as such, the special term was justified in finding that the attorney was not entitled to the guardian’s commission in addition to the costs of the settlement.
    3. Same—Summary Prooeedings.
    In such case the guardian had the right to proceed summarily against the attorney, under Code Civil Proc. H. Y. § 14, subd. 1, giving courts of record power to punish a neglect of duty on the part of an attorney, though the attorney retained the money in good faith, believing he was entitled to it for his services, and though there was a dispute between him and the guardian as to his right to so retain it.
    Appeal from special term, New York county.
    Application of George Ackerman, as guardian, etc., against August P. Wagner, an attorney, to compel him to pay over money claimed by applicant. The latter appeals from an order directing him to pay over the amount claimed
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      August P. Wagner, pro se. George C. Coffin, for respondent.
   Daniels, J.

The applicant, George Ackerman, was the general guardian -of two infant children, one of whom was believed to have died before the application was made. He received in their behalf the sum of $884.48 in January, 1873. He afterwards secured the interest upon the amount, and proceeded to settle his account before the surrogate, and by his check placed the money he held as guardian in the hands of the attorney. His accounts were brief and simple, and were readily settled, but the amount of money was not paid over because of a dispute arising between the guardian and the attorney as to what the latter should receive for his services. The costs of the proceeding are stated to have amounted to $69, and the attorney insisted upon receiving, in addition to that amount, the sum of $71, which were the guardian’s commissions for his services during his guardianship, extending over a period of 18 years. A proceeding was taken before the surrogate against the guardian and the attorney for the payment of these moneys, and in that proceeding the attorney returned all the money received by him, with the exception of the sum of $140, and that sum he claimed to be entitled to retain for his services in the proceeding. His right to retain this money was denied by the guardian, who assented to the payment only of the sum of $69, being the amount allowed for costs to the attorney. A demand is shown to have been made by and on behalf of the guardian for the money, which the attorney refused to comply with, and this proceeding was taken to oblige him to pay over, especially, the disputed sum of $71. In support of it the guardian has sworn positively to the terms of the settlement that were agreed upon, by which the attorney was to receive the sum of $69, being the costs for his services, and this statement is supported by the additional affidavit of George C. Coffin, who acted for the guardian, and he has also sworn that he made a demand in the presence of the guardian for the disputed money, and that the attorney refused to pay it over; and these demands were complete and effectual as a justification of the proceeding, even though they included also the sum of $69,—for the attorney wholly refused to pay any part of the money remaining in his hands. The attorney himself in his affidavit has denied the making of the settlement as it is claimed to have been made on behalf of the guardian, and has sworn that it was agreed that he should not only receive the costs, amounting to the sum of $69, but in addition the guardian’s commissions of $71; and, upon the issue arising out of this statement, the court at the special term made the order from which the appeal has been taken.

How this disagreement or misunderstanding may have arisen between the guardian and the attorney has not been disclosed by the affidavits read on the hearing of the motion, but it is reasonably clear that they should be construed as establishing the facts assumed by the court in making the order; for it is by no means probable that the guardian, after his long term of service in retaining and caring for this fund, would have been willing to surrender the small amount he was entitled to for commissions to the attorney, neither is it reasonable to suppose or believe, for the simple service by the attorney, that he was entitled to receive or demand from the guardian a greater sum than the costs of the proceeding. The probabilities of the case, notwithstanding the positive denial and statements of the attorney, are in favor of the guardian, and the facts accordingly should be considered to have been established that he received and has retained this sum of money, without any right to it as against the applicant in this proceeding. The guardian had already retained from the money his commissions, and what had been required to be paid over was designed to go to the ward of the guardian, who appears to have been entitled to the moneys of the estate.

In this manner a case has been presented upon which the guardian was invested with the right to proceed summarily against the attorney for the recovery of these moneys. So much, certainly, has been provided for by subdivision 1 of section 14 of the Code of Civil Procedure; for that has empowered a court of record to punish a neglect of duty or other misconduct on the part of an attorney in the performance of any ministerial service, or for a misbehavior in his office or trust, or for the willful neglect or violation of a duty therein. And in Bank v. Todd, 52 N. Y. 489, it was held that good-faith in the claim made by the attorney for the retention of the money in dispute would be no answer to this proceeding to oblige him to pay it over. Heither is it an answer, within this authority, that a dispute may exist between himself and the applicant concerning the fact of his lien or right to retain the money to satisfy a demand claimed to be due to him for the performance of his services. These, on the contrary, are facts which may be well-tried in the proceeding itself, and, if they are found upon the proof against the attorney, he may then be obliged, by an order of this description, to pay over the money to the applicant. This subject was still further considered in Re Knapp, 85 N. Y. 285, and the authority of the preceding case was again sanctioned and maintained; and the law, as it has been stated in the opinion delivered in the last case, fully sustained the power of the court over the subject by a summary proceeding against the attorney, and its jurisdiction to settle all disputes arising as to the right to the money in controversy. These cases comprehend the entire ground of the proceeding, and sustain the disposition which was made of the controversy by the special term. For this purpose it is not necessary definitely to determine upon which party tile obligation rested to prove or disprove the agreement asserted on behalf of the attorney. It is sufficient, for the disposition of the case, that the facts, as tiiey have been asserted in support of the proceeding, have been reasonably well maintained. The attorney delivered to the guardian a receipt for the money remaining in his hands, and his objection to the payment to the guardian on account of this fact has been fully avoided by the clause in the order requiring him to return this receipt to the attorney. The proceeding appears to have been well supported, and the order should be affirmed, with $10 costs, and also the disbursements. All concur.  