
    
      In re Schell.
    
      (Supreme Court, General Term, First Department.
    
    December 29,1890.)
    Attorneys—Summary Process.
    The summary remedy by motion to compel an attorney to pay over money of his client or be punished for contempt is not available to an assignee of the client.
    Appeal from special term, New York county.
    Application by Robert Schell, as assignee of Edward Schell, for an order that an attorney pay over to him money alleged to have been recovered in certain proceedings on behalf of said Edward Schell, or that an attachment issue against said attorney as for a contempt. The attorney appeals from an order granting the application.
    Argued before Van Brunt, P. J., and Bartlett and Barrett, JJ.
    
      Moody B. Smith, for appellant. John Delahunty, for respondent.
   Van Brunt, P. J.

The papers in this case present the rather curious anomaly of two separate, distinct, and inconsistent orders being entered upon a single application, with nothing upon the face of the papers to show thát one order is intended to replace or be a resettlement of the other. This practice is one that is not to be encouraged; and, if no other reason existed, we think it would form a sufficient ground for a reversal of the order appealed from. But there are other points which seem to be fatal to the application, and these may as well be disposed of upon this appeal as at any other.time. It appears from the papers in the case that the appellant had been retained by one Edward Schell to vacate -an assessment, and subsequently to recover certain moneys paid to the mayor, etc., because of said assessment. It was claimed upon the part of the appellant that he had two distinct retainers, and that he was entitled, under such retainers, to retain the sum of 30 per cent, of the recovery. The respondent, however, claims that he was only entitled to retain 25 per cent., and that the respondent was entitled to the payment of the balance. Edward Schell assigned his claim against the appellant to one Robert Schell, who brought this proceeding against the appellant for the payment of the money, or his punishment for a contempt. We do not think that an assignee of a claim against an attorney can avail himself of this summary remedy. It is a procedure strictly between attorney and client, as is recognized in Re Knapp, 85 N. Y. 284, and by the assignment of his claim against the attorney the client cannot assign his relationship. It is a grievance personal to himself. It is because of the relations existing between attorneys- and clients that the client is allowed to pursue this extraordinary remedy; and it is because it is the duty of the court to see that the attorney acts with fidelity, as well to the court as to the client, that it assumes this jurisdiction. There does not seem to be any principle upon which a stranger, simply because he has become the owner of a demand which had once been owned by a client, can seek this protection of the court. The court does not owe any duty to him-. He has not confided in the attorney because of this summary jurisdiction which he might invoke for his protection, and he stands, therefore, in an entirely different relation to the attorney than that which the client occupies. As already intimated, it is the duty of the court to see that an attorney acts with fidelity towards his client. Ho such obligation is placed upon the court as to strangers, and we have not been able to find any occasion on which such authority has ever been assumed or even hinted at. There certainly is no fiduciary relation existing between the assignee of a client and the attorney. Whatever obligations may exist between them are simply contractual; and the assignee, in taking an assignment from a client of a claim against an attorney, has no reason to suppose that he can claim against such attorney the penalties which a client may invoke. As already stated, the right depends upon the relationship,—upon the credit given by the client to and the confidence reposed in the attorney because of his being an officer of the court. To hold that an assignee, who is a stranger so far as being the client of the attorney is concerned, should be able to invoke these extraordinary remedies, would be to establish a principle which would entitle any creditor of an attorney to resort to the same procedure. And further, in this case, there was a dispute as to what the contract was between the attorney and client, and it seems to us that, unless it appears that this dispute was clearly frivolous, resort to these proceedings should not be encouraged. The order should be reversed, with $10 costs and disbursements, and the application denied. All concur.  