
    In the Matter of Robert P. Griffing et al., Practicing Law under the Name of Griffing, Smith and Lundberg, Appellants. Thomas F. Kearns, Respondent.
   In an action for separation by wife against husband, petitioners were the former attorneys for the husband, who interposed a counterclaim for separation. On a motion by the husband for substitution of attorneys, petitioners applied for the fixation of their fee on the theory that, where attorneys are discharged without cause, they are entitled to be paid before they surrender their position as attorneys of record. The motion for substitution was granted and the application for the fixation of petitioners’ fee was denied, without prejudice to the commencement of a plenary suit by petitioners to recover for their services. Order affirmed, with $10 costs and disbursements. Since a client has an absolute right to discharge his attorneys at any time with or without cause, the motion for substitution must be granted, although without prejudice to any retaining or charging lien which the attorneys have. (Matter of LycHg, 262 N. V. 408.) Petitioners do not claim any retaining lien. They do not have a charging lien because their client’s counterclaim for separation would not bring any fund into existence. (Matter of Heinsheimer, 214 N. Y. 361; Conklin v. Conklin, 201 App. Div. 170, affd. 234 N. Y. 546.) Furthermore, it is stated without contradiction that the action has proceeded to. trial and resulted in a judgment for the wife, which means that the counterclaim of the defendant husband was dismissed. In no event may there be a charging lien after the client’s cause of action has been dismissed. (Matter of Cooper [McCauley], 291 N. Y. 255, 261.) Wenzel, Acting P. J., MacCrate, Schmidt, Beldock and Ughetta, JJ., concur.  