
    Thomas Kane and Others, Appellants, v. C. Gunther Rose, as Sole Surviving Administrator of the Estate of John Manton, Deceased, and Others, Defendants. Joseph Wood, Respondent.
    
      Substitution of an attorney—the court may order a reference to determine the compensation of the attorney thus superseded—punishment as for a contempt of court of a party failing to pay the compensation thus determined.
    
    The plaintiffs in an action, after the entry of a judgment dismissing the complaint therein, made a motion for an order substituting a new attorney for their original attorney. There being a dispute as to the amount due the original attorney the order of substitution directed the appointment of a referee to take proof as to the amount due to the original attorney and to report the same to the court with the referee’s opinion thereon. The order made on the report of the referee required the plaintiffs to pay to the original attorney, within thirty days from the date of the service of a copy of,the order, the amount found due to him, together with the fees and expenses of the reference.
    
      Held, that the plaintiffs, having invoked the equitable jurisdiction of the court and accepted the order of substitution containing the provision for a reference, were bound to submit to any lawful order of the court in the premises;
    That the court had power to make the substitution conditional upon the payment by the plaintiffs to the original attorney of the amount due to the latter and the power to direct a reference to determine the amount due;
    That, in view of section 779 of the Code of Civil Procedure, which provides that where an order directs the payment of a sum of money an execution against the personal property of the party required to pay the same may be issued, it was doubtful whether the court would have authority, Under subdivision 3 of section 14 of the Code of Civil Procedure, to punish the plaintiffs in the event of their failure to pay the money required by the order as for a contempt of court.
    Appeal by the plaintiffs, Thomas Kane and others, from an order of the Supreme Court, made at the' Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 5th day of May, 1903, directing the plaintiffs, jointly and severally, to pay to Joseph Wood the sum of $295.68.
    
      Martin T. Manton, for the appellants.
    
      Thomas G. Frost, for the respondent.
   Woodward, J.:

Joseph Wood, an attorney and counselor of this court, was retained by the plaintiffs to prosecute an action to set aside a certain conveyance of real estate; The action, after some delay, was brought on for trial at a Special 'Term of the Supreme Court, resulting in a dismissal of the complaint. The plaintiffs desired to appeal from the judgment, but'were dissatisfied With their attorney, and made a motion for an. order substituting Martin T. Mantón. An order was granted making the substitution without requiring bonds for the protection of the lien of Mr. Wood under the provisions' of section. 66 of the Code of Civil Procedure. - There being 'a dispute as to the amount =due the latter, the order directed the appointment of a referee “ to take- proof as to the nature and terms of the retaining of Joseph Wood, Esq., as attorney for the plaintiffs herein and the value of his services and necessary disbursements not already compensated for, and the amount so due to Mr. Wood, and to report the same back to the Court with an opinion thereon,” and it’was further ordered “that the said Joseph Wood have a lien-to the extent of the amount allowed by said referee upon plaintiffs’ cause of action and all the pleadings, papers and exhibits -of the plaintiffs herein, and further ordered that no settlement of said .cause of action be had or made except upon and after notice to said Joseph Wood.” • .

The referee appointed by. such order entered upon the discharge of his duties and found thdt there was owing to Mr. Wood the .sum $232.73, which report, with a modification, was confirmed by the court, and the order appealed from thereupon .issued. This order provides that the plaintiffs “ be and they hereby are directed to pay, as their joint and several obligation,, to said Joseph Wood, Esquire, within twenty days from the date of the service of a copy of this order upon said Martin T. Mantón, Esquire, attorney for said plaintiffs, the sum of two. hundred seven and seventy-three one-hundredths dollars ($207.73), the amount found due said Joseph Wood, Esquire, from said plaintiffs’on said reference, together with the sum- of eighty-seven and ninety-five hundredths dollars ($87.95) fees and expenses of said reference.” .

The plaintiffs appeal from this order and urge that it was not contemplated by any of the parties that" the court should make such an order, coupled 'as it is with an intimation in the opinion of the learned court that Mr. Wood may follow this order by a motion to punish .as for a. contempt if the same is not paid within the time limited. But the order itself does not-provide for any punishment as for a contempt, and this court will not presume that any of its members will do that which is unlawful when called upon to act judicially. The plaintiffs accepted the order of substitution containing the provision for the reference, and that order not having been appealed from must be binding upon the parties in all of its terms and conditions. Section 66 of the Code of Civil Procedure provides that the “ court upon the petition of the client or attorney may determine and enforce the lien,” and the plaintiffs having invoked the equitable powers of the court in making a change of attorneys (Greenfield v. Mayor, 28 Hun, 320, 321) they must be deemed to have submitted to the jurisdiction ( Yuengling v. Betz, 58 App, Div. 8, 10) and they are bound to submit to any lawful order of the court. The court has directed them to pay a certain amount within twenty days after the service of the order, and this must be accepted as the terms upon which the order of substitution was granted. There is no doubt of the power of the court to make an order of substitution upon the condition that the plaintiffs shall pay the amount then due to the attorney of record, and the power to send the matter to a referee to determine the amount then due is established by authority. (Yuengling v. Betz, siupra, 10, and authorities there cited.)

In so far as the order appealed from is concerned we are clearly of the opinion that the court had jurisdiction and power in the premises and that the plaintiffs lia've no reason to complain. It may be proper to suggest, however, in view of the intimation in the opinion of the learned justice that section 779 of the Code of Civil Procedure provides that where a sum of money is directed by an order to be paid, if it is not paid within the time fixed by the order or within ten days after the service of a copy of the order, an execution against the personal property of the party required to pay the same may be issued by any party or person to whom the same is payable by the terms of the order (Halsted v. Halsted, 21 App. Div. 466, 467), so that it is doubtful if there be any authority under subdivision 3 of section 14 of the Code of Civil Procedure to punish the plaintiffs as for a contempt of court. This subdivision, limits the power of the court to punish as for a contempt 'for the “non-payment of a sum of money ordered or adjudged by the court to be paid ” to a “ case where by law execution cannot be awarded for the collection of such sum.” The order appealed from is merely an adjudication that the sum mentioned in the order is due to Hr. Wood, with a direction that it be paid. If the plaintiffs fail to pay the same within the time limited in the order, Hr. Wood may issue an execution against the personal property of the plaintiffs, as was done in the case of Greenfield v. Mayor (supra), although the dictum would extend the power beyond this point. The limitations which we have suggested appear to be sanctioned by O’Gara v. Kearney (77 N. Y. 423, 426) and Myers v. Becker (95 id. 486, 493), and authorities there cited.

The order appealed from should be affirmed, with costs.

Goodrich, P. J., Hirschberg, Jerks and Hooker, JJ., concurred,

Order affirmed, with ten dollars costs and disbursements.  