
    In the Matter of the Application of Oscar G. Borkstrom, Respondent, to Compel Jacob Levy, an Attorney at Law of the State of New York, Appellant, to Pay over Certain Moneys.
    
      Order that cm attorney pay over money to hie client—what statements by the attorney constitute a submission of the question to the court on the motion and make a reference unnecessary.
    
    Where, on a motion to compel an attorney to pay over a sum of money to his client, the attorney seeks to justify his retention of all but a very small portion of such money, and states in his affidavit that he has always been ready and willing and anxious to pay over to the petitioner such sum of money as the latter is entitled to, and that he joins in an application that the court fix and determine the amount to which he may be entitled for his services, the attorney cannot on an appeal from an order granting the motion urge the objection that the court should have directed an inquiry by reference or otherwise as to the amount of money to which the petitioner was entitled, and should not have disposed of the question upon the motion.
    
      Appeal by Jacob Levy from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 6th day of May, 1901, granting the application of Oscar G. Borkstrom and directing the said Jacob Levy to pay over certain moneys to said petitioner.
    
      W. H. Spooner, for the appellant.
    
      Jesse Grant Hoe, for the respondent.
   Patterson, J.:

This is an appeal by Jacob Levy, an attorney, from an order made at Special Term requiring him to pay over a sum of money to his client or to be punished for a contempt for failure to do so. The attorney was employed to foreclose a mechanic’s lien, and in the order appealed from he is directed to forthwith pay to one Borkstrom, his client, the sum of $1,592.16, collected in the action and belonging to Borkstrom, and “ wrongfully and fraudulently withheld and kept by the said Jacob Levy,” and in case of failure forthwith to pay over the money it is ordered that he be forthwith punished as for a contempt of court. The order was made upon motion founded on a petition presented to the court by Borkstrom. In answer to the motion the attorney presented his own and other affidavits seeking to justify his retention of all but a very small portion of the amount received by him. He challenged the right of the plaintiff to receive any more than a very inconsiderable sum. The principal objection now urged by the attorney to the order is that there being' a contest between himself and his client as to the amount to which the latter is entitled, the court should have directed an inquiry by reference or otherwise as to that subject and should not Jiave disposed of it upon a decision of the motion. But the answer to that objection is that that matter was passed upon by the justice. at Special Term upon the invitation of the attorney himself, who submitted it to such justice for determination. In his affidavit the attorney says that he has always been ready and willing and anxious to pay over to the petitioner such sum of money as he is entitled to, and that he joins in an application that the court fix and determine the amount to which he may be entitled for his servicés and for compensation. Upon the papers presented to the justice at Special Term the deter-ruination asked for was made. There was no necessity for a reference. The justice had before him all the facts necessary to the ascertainment of the rights of the attorney and he remarks that the allegations of the petition are conclusively established.

The record presents a most extraordinary instance of rapacity on the part of an attorney — fortunately uncommon among lawyers practicing at this bar. The plaintiff employed the attorney to foreclose a mechanic’s lien for the sum of $1,200, and on the 31st of August, 1900, he paid to such attorney a fee of $50, taking from him a receipt in the following words, viz.:

“ New Tobe, Aug. 31 st, 1900.
Reed, the sum of Fifty Dollars from O. Gr. Borkstrom in full payment of all services & fees in case of Borkstrom vs. Cooper Foreclosure of Mechanics’ Lien.”

In addition to the $50 the attorney was entitled to retain such costs as might be recovered in the action. That $50 for full compensation for all services to be rendered in such an action is a very small fee is apparent, but, when taxable costs' are added, the compensation is not inadequate. The attorney claims that an agreement was made between himself and his client on the same day the receipt was given, that he should have in addition one-quarter of any recovery that might be had in the action. That is denied by the petitioner. It is not claimed that such agreement was reduced to writing, and the justice was fully justified in refusing to believe that upon the same day upon which a sum of money had been received by the attorney in full payment for all services aud fees, another and different agreement was made by which he was to have such a large proportion of a recovery. At the time the fee was paid and the receipt was given the foreclosure suit had not been instituted; the action was not begun until September 10, 1900, and the $50, therefore, paid in August must have related to prospective services in an action and could not be referred to prior services independent of an action. The foreclosure action proceeded to trial and judgment was recovered for $1,912.48, which the attorney settled for $1,800. His authority to allow any deduction is. denied. He admits, however, that the greater part of that deduction should come from the costs to which it is entitled. Those costs, not including disbursements, amount to .about $300. The one quarter of the balance of the judgment which the attorney claims amounts, as he makes the figures, to $375. In addition, he claims 'to have employed his father as counsel for the petitioner on the trial of the case, and he insists that his father is entitled to $450. for .services which, according to the affidavit of the petitioner, consisted in nothing but sitting in court during the trial of the cause. The attorney did not prove to the satisfaction of the court below an authority from .his client to employ counsel, and Borkstrom testified that he did not.know of such employment; never requested it,, and that there was never any intimation even that the father of the' attorney expected any compensation from him. Philip Levy, the father of the attorney, claims the lien of $450 for his services, and the learned justice below again remarked, “If I entertained any doubt regarding the allegations of the petition, the attitude assumed by Philip Levy would remove it.”

We have thus far seen that this attorney claims to be entitled for himself and his father out of the money realized on the judgment some $1,125, notwithstanding his agreement, as evidenced by the terms of the receipt above referred to.

" The attorney in his effort to absorb the moneys of his client sets, up, in further reduction, a demand for $300 for services rendered to Borkstrom in matters other than the action for the foreclosure of the mechanic’s lien. Those- services were rendered in connection with certain small claims referred to in the affidavit of the attorney and also in that of the petitioner Borkstrom. The latter has sworn' that the total amount involved in all of those matters, was $891, and that the attorney Collected of that sum only $446, and that the said attorney was paid in full for his services the sum of $148.55. The payment is denied by the attorney,.but the justice at Special Term believed the petitioner’s statements. There are some other items involved in the inquiry as to the amount to which Borkstrom is . entitled, but it is unnecessary to consider them in detail. They relate to disbursements for typewriting papers and for stenographer’s fees.

On the whole record, we are satisfied that the justice below properly disposed of the application. It is apparent that he rejected the story . told by this attorney, and has also given no force to affidavits made-by other parties and presented by the attorney, believing, as he was entitled to, that there was a specific contract made by the attorney, and that no other agreement for compensation than that specific contract Was ever entered into between the parties. As the whole matter was submitted by the attorney himself to the justice at Special Term for determination, we see no reason for differing with the court below in the conclusion at which it arrived.

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

Yan Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Older affirmed, with ten dollars costs and disbursements.  