
    COURT OF APPEALS.
    In the Matter of an Attorney.
    
      Attorney and client — Summary proceedings—To give the right to proceed sum/ma/rüy against an attorney, what is essential to he proved.
    
    In order to give the right of oroceeding summarily against an attorney, it is essential that the relation of attorney and client should exist between the parties in relation to the matter which is the ground for the application, and when the same is denied by the attorney the fact must be established by common-law proof.
    Where a summary application is made to the court requiring an attorney to surrender papers intrusted to his care, which he claims to hold by virtue of a lien for services rendered to the applicant, he cannot be required to surrender the same until the said lien is paid, and if said lien is questioned it must be determined by the court or a referee, upon a proper investigation.
    
      January, 1882.
    
      This was an appeal from an order of the general term of the supreme court in the first department, affirming an order of special term of said court punishing the appellant as an attorney, for professional misconduct, by directing that he forthwith return a policy of insurance to the defendant, with the costs of the application.
    It appeared by the affidavit of the respondent that he executed and delivered to the appellant, who was an attorney and counselor-at-law, a certain policy of life insurance with a power of attorney for the special purpose of enabling him to perfect or confirm the rights of the said respondent, with the understanding that the said policy should be returned to the respondent as soon as the purpose for which the same was placed in the hands of said appellant were accomplished. The petitioner further declared that the said attorney did, as said respondent is informed and believes, convert said policy to his own personal use and in utter disregard and violation of his duty as such attorney in fact, and as one of the attorneys and counselors of the court.
    The appellant generally denied the allegation alleged in the petition, and that said power of attorney and policy of insurance were received by him as an attorney and counselor of law, and was therefore not hable upon a summary application, and that the said respondent was indebted to the appellant for about $980 for professional services and disbursements made as an attorney and counsel for the respondent, and that he held said policy and power of attorney by virue of his hen thereon for said services. The general term affirmed said order of special term and from which an appeal was taken to this court.
    
      Abram Klvng, of counsel for appellant.
    
      Ooudert Bros., of counsel for respondent.
   Finch, J.

We cannot sustain this order. It is founded rather upon suspicion than proof. It may be just to characterize the attorney’s affidavit as evasive and disingenuous, which appears to have been the impression made by it ■ upon the general term, but,' nevertheless, it raised a distinct issue, not to be disregarded, and interposed a barrier to decision without further inquiry. The proceeding instituted was not one to disbar the attorney for unprofessional conduct, and the rules governing such a case are not necessarily applicable here. Heither was it a proceeding under the Code (secs. 14, 2281, 2283, &c.), for here was no action or special proceeding pending in the court in which the rights of a party were prejudiced or defeated by the misconduct alleged. It does not follow, however, as the appellant contends, that the remedy pursued in this case was without legal authority. It rests upon the relation of the attorney to the court as its officer, and the general control always exercised founded upon that relation. The Code has not taken it away, and purports, in the sections cited, only to regulate it and dictate the manner of its exercise in the class of cases specifically mentioned. The general authority remains, but it is a power which has reasonable limitations, and has usually been, and should always be, exercised with great prudence and caution, and a sedulous regard for the rights of the client on the one hand and of the attorney on the other. In this ease the complainant’s affidavit, while alleging that the appellant is in fact an attorney of the court, does not allege that the policy of insurance was delivered to him as an attorney or in his professional character, or by reason of that character, or for the purpose of having him perform, in regard to it, some professional duty. It is, perhaps, possible to infer some such fact, although nothing appears to indicate that the duty to be done, which was to confirm the complainant’s right to the policy, might not have been done just as well, and quite as appropriately, by a mere agent who was not an attorney. But if we indulge in such inference, it is entirely met and answered by the affidavit of the attorney, in which he swears positively that he did not receive the policy in his professional character, or for a professional purpose; so that while the complainant fails to allege the necessary fact, and the attorney explicitly denies its existence under oath, it is very difficult to see how the court could properly act upon the theory of a professional duty violated. We can readily admit that it might be the privilege, and perhaps the duty of the court, with its suspicions aroused, to institute further inquiry and ascertain whether in truth the case was one of professional misconduct, instead of mere agency; but stopping where it did, and upon the papers presented, it ought not to have assumed a foundation fact, not even asserted on one side and explicitly denied on the other. The attorney, admitting his receipt of the policy, further alleged that the complainant was indebted to him in the sum of $980, for professional services previously rendered, as security for which he had a lien upon the policy for that amount. If his statement is true he had such lien. The subject has been recently discussed in this court, and the doctrine maintained that the attorney’s lien extends to a general balance of account for professional Services, and that such services are not confined merely to a litigation which terminates in a technical judgment (In the Matter of Knapp, 85 N. Y., 2847; Ward agt. Craig, MSS. January, 1882).

Upon the facts before the court the attorney had a lien upon the policy, and could not legally be required to deliver it up until his just and reasonable charges were paid. He asserted a distinct and recognized right which the court was not at liberty to disregard. Of course it was not necessary to take the attorney’s word as conclusive, or his estimate as just. At this point, again, inquiry by the court itself or through the aid of a referee would have been entirely proper. Such investigation would have disclosed the character of the services, their value and the extent of the lien, and justice then could have been done to both parties without danger of infringing the rights of either. There is as much justice in requiring Ehemis to do his duty to the attorney as in compelling the latter to respect the rights of the former. It is not merely attorneys-at-law who must he made to fulfill obligations fairly incurred. While no prudent and proper control should be relaxed, admitted rights must not be overlooked.

How careful the courts have been in such cases is apparent from many of the earlier authorities (In re Milliard, 1 Dowl. Pr., 140; Hodson agt. Ferrall, 2 id., 264; In re Murray, 1 Russ., 519; In re Aitken, 4 Barn. & Ald., 477).

In these cases, where the attorney claimed a lien, the court either declined to interfere, saying it was matter for a jury, or at least sent the attorney’s bill to a master to be taxed, but never disregarded the right of the attorney or denied him the benefit of his lien, where it had justly attached. In the case before us such care was not exercised. The order disregarded the facts alleged, and practically destroyed the attorney’s lien. The decision cannot be justified by saying that the court distrusted the affidavit.

That would have warranted inquiry, but not disbelief without inquiry. It is intimated, however, that the attorney lost his lien because he says in his affidavit that the policy was not at the commencement of the proceedings or at the date of the affidavit in his possession. But the order goes on no such ground. It. assumes the policy to be in the attorney’s possession or under his control, for it directs him to deliver it up. It must come into his possession before he can obey, and when there his lien remains. It is further said that the attorney had pledged or hypothecated the policy and converted the proceeds to his own use. But this is alleged only upon information and belief, ¿nd any conversion is denied by the attorney in explicit terms. It is true he does not give explanations, and his answer is claimed to be guarded and unsatisfactory. It was probably drawn to serve in a general way as a pleading and to bring up the issues expected in some manner to be tried, and therefore explanations were reserved for the anticipated hearing. Be that as it may, it does deny the complainant’s case in all material respects, and furnishes a complete answer to every relief except a further investigation. Doubtless the policy is within the attorney’s control, and upon a proper investigation, disclosing all the facts, it may become the duty of the court to direct its surrender, but upon the affidavits presented the order cannot be sustained and rests upon no sufficient foundation.

It should be reversed, with costs.

All concur.  