
    Edmund Bittiner, Appellant, v. Mayer C. Goldman, Respondent.
    (Supreme Court, Appellate Term,
    January, 1897.)
    Attorneys — Liability of substituted attorney to his predecessor.
    After procuring an order for alimony and counsel fees in an action for- divorce, plaintiff consented' to a substitution of the defendant as attorney on receipt of a consent by the client that upon collection under the. order he should be paid the counsel fee and $25 to be deducted from the alimony, which consent was witnessed' by the defendant. Subsequently thereto defendant procured an amendment of the- order by which the counsel fee was increased and the alimony diminished, and sufficient was collected by him to pay the plaintiff, but he refused to do so. ' .Held, that by virtue of the consent of the client it became the duty of the defendant to make such payment;, that he was not excused by the fact that the moneys were' collected under the amended order, or that he had paid the money to his client, and that an action for money had and received would lie therefor.
    . Appeal by the plaintiff from a judgment of -the justice of the Third District.in favor of defendant.
    Abraham Nelson, for appellant.
    Wertheimer & Duffy, for respondent.
   Daly, P. J.

The plaintiff, an attorney and counselor-at-law, was the-attorney of Mrs. Ida Isén in her action of divorce against her husband Paul Isen in the Superior Court, in which action an order had been made by Mr. Justice Gildersleeve for a counsel fee of $25, and alimony' at the rate of $10 per week, to be paid to Mrs. Isen by her husband. Mrs. Isen desired to have the defendant in this action, Mr. Mayer C. Goldman, substituted as her attorney in place of this plaintiff, who consented'to such substitution on receiving a payment of $25 and the following writing:

“N. Y. SUPREME COURT.

“ Ida Isen v. Paul Isen.

“In the event that the alimony and counsel fee directed to be paid in above action by order of Justice Gildersleeve, dated October 14, 1895, be collected from defendant herein, I hereby consent that the said counsel fee, to-wit, $25, and the further sum of $25 deducted from the amount of alimony due me, be paid to Edmund Bittiner, Esq., attorney-at-law. New York, June 8, 1896.

“ Ida Isen.

“ Witness, Maybe, C. Goldman.”

The above- consent was not only witnessed by the defendant, but was drawn up by him, and he was duly substituted as attorney for Mrs. Isen upon her consent and that of this plaintiff. He subsequently procured from a justice of the Supreme Court (to which all the proceedings had been transferred under the new Constitution) an order whereby, among other things, the counsel fee payable by the husband was increased to $40 and the alimony was reduced to $5 per week. Such counsel fee and 'also alimony to the amount of $25 and over was collected by the defendant who, however, refused to pay to the plaintiff the sums specified in the foregoing consent; and thereupon this action was brought to recover them. These facts appear from allegations and admissions in the pleadings and from admissions upon the trial. The complaint was dismissed on the ground that the plaintiff had not stated nor proved a cause of action against the defendant.

The defendant is bound in equity and good conscience, to pay over to the plaintiff the sums sued for pursuant to the consent which he drew up and witnessed, and upon the giving of which he was substituted as attorney in plaintiff’s place for the client who executed the consent. It in no wise altered his obligation that after such substitution he procured a modification of the original order for counsel fee and alimony by which the former was increased and the latter diminished. This modification did not relieve him from the duty of paying over the equivalent of the sum awarded in the original order because he collected under the new order a sum sufficient to make such payment. His defense is that nothing ever was collected under the original order, but this was because another order was got by him in place of it. But for that the collection would have been made under the original order, and so, whether the moneys coming into his hands were the proceeds of the original order or its substitute, they were impressed with a trust in favor of the plaintiff, who was entitled to recover the sum payable to him as money had and received to his use. Although there was no contract on the part of the client to pay this money, there was a direction by her to defendant to pay it, and an implied contract on his part to do so as soon as the moneys came into his hands, since he received them with the knowledge that the plaintiff, under the. arrangement aforesaid, was equitably entitled to them. In Roberts v. Ely, 113 N. Y. 128-131, the court say: “ The case- falls within the familiar doctrine that money in the hands of one person, to which another is equitably entitled, may be recovered in a common-law action by the equitable owner upon an implied promise arising from the duty of the person- in. possession to account for and pay over the same to the person beneficially entitled. The action for money had and received to the use of another is the form in which courts of common law enforce the equitable obligation. The scope of this remedy has been gradually extended to embrace many cases which were originally cognizable only in courts of equity. Whenever one .person has in his possession money which he cannot conscientiously retain from another, the latter may recover it in this form of action, subject to • ■the restriction that the mode of trial -and the relief which can be given in a legal action are adapted to the exigencies of the particular case, and that the transaction is capable of adjustment by that procedure, without prejudice to the interests of third persons. No privity of contract between the parties is. required, except that which results from the circumstances. Mason v. Waite, 17 Mass. 560. The right on the.one side, and the correlative duty on the. other, create the necessary privity and justify the implication of a promise by the defendant to do that which justice 'and equity require. ■ It is immaterial, also, whether the original possession of the money by the defendant was rightful or wrongful. It is sufficient that the duty exists on his part, created'by the circumstances, to account for and pay it over to the plaintiff. For is this form of action excluded because in a general sense there is a relation of trust between the parties arising out of the transaction.” To the same effect is Chapman v. Forbes, 123 N. Y. 532.

. It is alleged by the defendant that he has paid the money in dispute to his client. Blit this is no defense, since he could not discharge or evade his obligation to pay the money to the plaintiff by handing it over to another! Upon the admissions in the pleadings and on the trial' appearing by. the record the plaintiff was entitled to judgment.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

MoAdam and Bischoff, JJ., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.  