
    In the matter of the application of L. E. Chittenden to compel payment by his attorney of money received by him as such.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 30, 1886.)
    
    1. Attorney—Moneys of client received by, may be recovered summarily.
    The petitioner employed one H. to procure, if possible, a release of his lands from certain assessments laid upon them. The employment was made under a written contract by which H. was to receive 25 per cent of the amount from which he should succeed in getting the land released, none of the expense of legal proceedings resting upon the petitioner. Subsequently, nothing having been effected by the attorney in removing the lien from the land, the petitioner paid the assessment. After this an order by the court was obtained by which the assessment was reduced 29.7 per cent in accordance with a ruling of the court of appeals holding that money could be recovered back, altho' gh paid by the person assessed after the institution of proceedings to have the same vacated. H. prepared and served a summons and complaint in an action to recover the amount illegally assessed against the petitioner’s property and no defense having been made thereto judgment was entered in the plaintiff’s favor. H. not only retains the 25 per cent under the original contract, but a further 25 per cent for services in instituting the action rendered necessary by the payment of the assessment. An application was made by the petitioner to the special term for an orddr requiring H. to pay over the sum retained in excess of that originally stipu.ated for. Held, that the petitioner had the right thus summarily to ask the court to restore him his moneys in the hands of his attorney, and that the fact that the withholding of the moneys by the attorney was done in good faith and in reliance on a just belief that he was entitled to' greater remuneration is not a sufficient answer to an order to show cause. Such circumstance would be taken into account by the court in determining whether it would entertain a summary application or whether it would require the claimant to assert his rights under the common law jurisdiction in a trial by jury.
    2. Referee—Opinion expressed by referee without authority of the ORDER OF REFERENCE UPON EVIDENCE TAKEN BEFORE HIM DOES NOT INVALIDATE AN ORDER MADE UPON THE REPORT.
    
      Held, that a matter having been referred to a referee to take testimony, and the referee having beside taking the testimony according to the order and returning it to the court, appended thereto an opinion on the evidence, the fact that the mind of the court was unduly influenced by the opinion in making an order in the proceeding is immaterial if the testimony was sufficient to sustain the order.
    3. Waiver of objection—Effect of.
    On appeal from an order requiring him to pay to his client moneys of his which he had received H. claimed that the client should be. required to resort 10 an action against him, and that he ought not to be thus summarily requ.red to settle with liis client: Held, that this consideration might properly have been addressed to the special term before the order of reference was made, and, also, upon the hearing after the report of the referee lias been made; also, that it might be considered on this appeal, but that H. having upon the r.turn of an order to show cause why he should not be. required to pajr over the money consented to the order of reference, waived his right to insist that he be proceeded against by common law process.
    Appeal from an order of the special term requiring the respondent, one P. A. Hargous, to pay over to the petitioner the sum of $880.
    
      Chittenden, Townsend & Chittenden, for petitioner; P. A, Hargous, in person, for app’lt.
   Macomber, J.

Mr. Hargous was employed by the petitioner in the year 1872 to procure, if possible, a release of the petitioner’s lands from certain assessments which had been laid upon them by the city of New York. The employment was made “under a written contract by which the appellant was to receive for his services twenty-five per cent of the amount which he should succeed in getting released as a lien upon the lands, without any expense of legal proceedings to the petitioner. In the year 1874, nothing having at that time been accomplished by the attorney by way of removing the liens, the petitioner paid the assessment which was at that time about $7,000. Subsequently to that an order was obtained by the court by which the assessment was reduced by 29 7-10 per cent, in accordance with the decision of the court of appeals in the Matter of Hughes (93 N. Y. 512), whereby it was held that the money could be recovered back, although actually paid by the person assessed after instituting proceedings to have the same vacated. The appellant prepared a summons and complaint, and served upon the proper officers of the city of New York, who made no defense thereto, and, accordingly, judgment was entered in favor of the petitioner by default for the recovery of the amount which had been illegally assessed against his property. The appellant now claims to retain not only the twenty-five per cent according to the terms of the original contract, but a further sum of twenty-five per cent for additional services in instituting suit which had been rendered necessary by the payment into the city treasury of the amount assessed against the petitioner. The attorney having paid over to the petitioner only fifty per cent of the amount recovered from the city, and refusing to pay the additional twenty-five per cent claimed to be due the petitioner, this proceeding was begun to compel the attorney to restore to his client the moneys held for him.

That the petitioner has the right thus summarily to ask the court to restore to him his moneys in the hands of his attorney, admits of no doubt. It has been the uniform practice of courts in this state to compel by proper order a quick and inexpensive settlement of controversies of this description between client and attorney. Nor is the fact that the withholding of the moneys by the attorney is done in good faith and in reliance upon a just belief that he is entitled to more pay a sufficient answer to the order to show cause. Doubtless such a circumstance would be taken into account by the court in determining whether it would entertain a summary application, or whether it would require the claimant to assert his rights under the common law jurisdiction in a trial by jury. Bowlingreen Savings Bank v. Todd, 52 N. Y., 493; In the Matter of the Application of Knapp, 85 id., 284.

An examination of the testimony convinces us that the petitioner had no reason to believe that there would be any further charge against him than that of the twenty-five per cent provided for by the written agreement between the parties. By his own act, however, in paying the amount of the assessment into the city treasury, he did render it necessary to take one simple formal step towards accomplishing the result which, except for the act of the petitioner, would not have been necessary. But the preparation of the summons and complaint, and the entry of judgment by default, was not a proceeding of such gravity or of such a nature as further to modify the original contract between the parties than to impose an obligation upon the petitioner to pay for such special services what they were reasonably worth. Accordingly, the referee has allowed, in addition to the twenty-five per cent, the further sum of fifty dollars for performing this purely clerical work. We think that such an allowance was ample for the services thereby rendered.

The appellant complains, however, that the referee not only returned the testimony taken before him, but also appended thereto an opinion which was not called for by •the order appointing him. It is true that the order does not require the referee to give his opinion upon the testimony that should be taken, but it by no means precluded him "from furnishing that aid to the court. If the referee, diligently considering a case, sees fit thus to render this aid in the decision of a question of fact, the court is ever ready to receive such help and cannot deem it the foundation of an error in the proceedings. It is further claimed that the opinion of the referee unduly influenced the decision of the special term, as expressed in the memorandum of the opinion handed down, but the decision of the court is contained in the order which was made by it and not in the memorandum of reasons given for that order. If the order is sustained by the testimony, as we clearly think it is, it matters not whether or not the judge who made the order gave undue weight to the examination of the case which was made by the referee.

It is further claimed by the appellant that he ought not to be thus summarily required to settle with'his client, but that the client should be required to resort to an action against him wherein he could have a trial under common law jurisdiction of the questions involved in this motion. That consideration might well have been addressed to the special term before the order of reference was made, and also upon the hearing after the report of the referee had been made. This cqurt, doubtless, also has upon this appeal power and a right to consider if. In the record, however, if is shown that upon the return of the order to show cause why the attorney should not be required to pay over this money, a reference was ordered by the consent of both parties. The appellant thereby waived his right, if it exists at all, to ask that he be proceeded against by common law process, and not under the summary provisions of th’e statute and the rules and practice of the court in controversies between attorney and client.

The order should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs.

Brady, J.—In this case I think party should be left to his action.  