
    John J. Radley and Margaret Josephine Ramsey, Plaintiffs, Impleaded with Anna Augusta Kenly, Respondent, v. Clarence W. Gaylor, Defendant. James E. Kelly, Appellant.
    
      Attorney and client — agreement as to the respective parties by whom compensation shall be paid to the respective attoi'wys far the plaintiffs, construed —summary proceeding to determine an attorney’s right to a lien for services on the slia/re of a party in the proceeds of the action.
    
    James B. Kelly, an attorney, about to bring an action on behalf of parties named respectively Kenly, Radley and Ramsay, against one Gaylor, entered into the following agreement: “Regarding the suit against Gaylor, the suggestion is accepted that Mr. Logan is also to he of counsel for plaintiffs, and Mrs. Kenly is to pay all fees and charges of Mr. Logan; Mr. Radley and Mrs. Ramsay to pay the remaining expenses.”
    
      Held, that Mr. Kelly was not entitled to retain as compensation for his services any part of the money recovered in the action which belonged to Mrs. Kenly.
    The power conferred on the court by section 66 of the Code of Civil Procedure, as amended in 1899, which provides that the court, upon the petition of an attorney or his client, may determine and enforce the attorney’s lien, necessarily includes the power of the court to determine in a summary way whether or not a lien exists.
    Appeal by James E. Kelly, an attorney at law, 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 3d day of October, 1904, directing him to pay to Anna Augusta Kenly, or to her attorney, Walter S. Logan, the sum of $233.33.
    
      
      James E. Kelly, for the appellant.
    
      William T. Read, for the respondent.
   Patterson, J.:

An order was made at Special Term directing that James E. Kelly, an attorney at law, pay to Anna Augusta Kenly, or to her attorney, Walter S. Logan, the sum of $233.33. Mr. Kelly was attorney of record for the three plaintiffs in this action, Mrs. Kenly being one of them. Before the action was begun, Mr. Kelly agreed as follows: “ Regarding the suit against Gaylor, the suggestion is accepted that Mr. Logan is also to be of counsel for plaintiffs, and Mrs. Kenly is to pay all fees and charges of Mr. Logan ; Mr. Radley and Mrs. Ramsay to pay the remaining expenses.” The action was settled and Kelly as attorney received $600 for the benefit of Mrs. Kenly. That was the amount to which she was entitled. He has paid over $366.66 and refuses to pay $233.33, claiming the right to retain it as compensation. The relations of the parties seem to have been fixed by the arrangement above referred to. There were three parties plaintiff to the action against Gaylor, and it is evident that Mrs. Kenly intended that her interest in the action should be looked after altogether by Mr. Logan, and that Mr. Kelly prosecuted the action under the agreement that Mr. Radley and Mrs. Ramsay were to pay all the expenses of the action excepting that Mrs. Kenly was to be responsible for the fees and charges of Mr. Logan, and it was upon that condition that Mrs. Kenly came in as a party plaintiff. She did not contemplate paying two lawyers. The protection of her interests was to be confided to Mr. Logan. That is the fair construction of the agreement.

The court had power to compel the attorney to pay this money over. It cannot be said that Mr. Kelly is acting in bad faith. He may be perfectly honest in the assertion of the claim, but he is wrong in his contention. The attitude in which he stands is that of an attorney who retains money from his client on the ground that he has a lien for services and that he is entitled so to retain it to satisfy that lien. This is in its purpose and effect simply an application to determine whether the attorney has a lien, and it is competent for the court to consider the matter under the amendment of 1899 of section 66 of the Code of Civil Procedure which says that the court upon the petition of the client or attorney may determine and enforce the lien, and that necessarily includes the power of the court in this summary way to say whether a lien exists or not. (Corbit v. Watson, 88 App. Div. 467.)

I think the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  