
    Tuck v. Manning.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    Attorney and Client—Substitution of Attorney—Lien.
    When the attorney of record refuses to render any further services for his client in defense of the action until his claim for past services is paid, a motion to substitute another attorney in his place should be granted, as by such refusal he waives his inchoate right of lien on the judgment for his fees.
    Appeal from special term, Mew York county.
    This is an appeal by defendant, Jerome F. Manning, from an order denying his motion to substitute Philip Carpenter as his attorney in the place and stead of William J. Weldon, his attorney of record. The ground of this motion was (and the fact is not disputed) that Weldon had refused to render any further services in this and two other actions against the same defendant unless his fees already earned were first paid.
    Argued before Van Brunt, P. J.,- and Brady and Daniels, JJ.
    
      Philip Carpenter, for appellant. William J. Weldon, pro se.
    
   Van Brunt, P. J.

We fail to see any distinction between the case at bar .and the case of In re H., 93 N. Y. 381. It is true that the court may in a proper case refuse substitution where the client refuses to compensate the attornev for services already rendered. But it is difficult to see how the position of the attorney for the defendant in this case can be justified in his absolute refusal to render any further services in the action unless his bill for previous services is paid. It is claimed upon the part of the respondent that the court will not direct a substitution of attorneys without protecting the-attorney in his lien for his fees. Upon this proposition the court of appeals in the case cited say: “Assuming, however, * * * that the lien of an attorney would under ordinary circumstances attach to the final decision in such proceeding, * * * it cannot now be claimed by him, for he refused to do the act which would have rendered a judgment in his client’s favor possible, and so waived a right to which he might otherwise have become entitled; and if for services rendered before judgment there was an inchoate right of lien, it was lost by his unqualified abandonment of the cause. In other words, he discharged himself; and in such a case it is clear that an attorney cannot leave his client in the middle of a matter, because he does not supply him with money, or by reason of any other difficulty, without running the risk of losing the benefit of that relation.” Applying the rule laid down to the case at bar, the attorney, having refused to go on with the defense of the ease in question without the payment of his bill for services already rendered, he, in the language of the court of appeals, has discharged himself as the attorney of the defendant, and the court is bound to substitute some person to look after his client’s rights, and in order that he may be protected from perhaps an unjust judgment. The defendant could not compel the attorney to render his services, nor, on the other hand, was he bound to submit to an adverse decision by reason of the attorney’s default. Applying these principles to the case at bar, it is clear that the defendant, in view of the attitude taken by his attorney, was entitled to a substitution, and there was nothing upon which any lien as attorney could attach, and that the only right which the attorney seeks to enforce is the right of the plaintiff to obtain judgment against his own client for want of a defense. We think, therefore, that the order appealed from must be reversed, and an order of substitution granted, with $10 costs and disbursements. All concur.  