
    GARDNER against TYLER.
    
      N. Y. Common Pleas ; General Term,
    
    
      January, 1868.
    Substitution oe Attobneys.—Motions and Obdebs.
    Where the court grant a motion for substitution of attorneys, on the application of a client, upon condition that the client pay the sum found' by a reference to be due to the attorney, and the attorney, upon the sum- ' being thus liquidated, tenders a substitution, with the papers in the astion, demanding payment of such sum, the court should not compel the party to accept the substitution and pay, by proceedings for contempt.
    ‘Motion to compel compliance with a former order of the court.
    In this action, which was brought by David L. Gardner against Julia E. Tyler, William Watson, the attorney for the plaintiff, was served, on the 30th day of August, 1887, with an order, made by one of the judges of this court, to show cause why R. W. Townsend should not be substituted in his place as attorney for the plaintiff. The motion was heard before Mr. Justice Cabdozo, who made an order that it be referred to a referee by him appointed, to determine and report the amount due to the said attorney from the plaintiff, for costs and disbursements and counsel fees in this action, and also in another action in favor of the plaintiff against said Julia E. Tyler, pending in this court; and that on the coming in and confirmation of the said report, and upon payment by the plaintiff of such amount as might be found due to the said Watson for costs, disbursements and counsel fees in this action, and in the other suit of Gardner v. Tyler aforesaid, the said R. W. Townsend be, and he hereby is substituted as attorney for the plaintiff in this action, and in the other ■action of Gardner v. Tyler, in the place of the said Watson. The reference took place in pursuance of the order, plaintiff appearing by counsel, and the attorney in person. The attorney submitted his bill for costs, disbursements and counsel fees, and witnesses were examined as to their value.
    On the 12th of November the referee reported, that after hearing the-proofs and allegations of the parties, he found that there was due from said plaintiff to the said William Watson, for costs, disbursements and counsel fees in this action, the sum of five hundred and sixty-two dollars and fifty cents, and in the other action of Gardner v. Tyler the sum of one hundred and fifty ■dollars and fifty cents.
    
      A motion was made to this court subsequently by said Watson, for the confirmation of this report, and on the 16th day of December the report was, by order of the court, in all things confirmed.
    Since the confirmation of the report, Watson, the attorney, served upon the said Townsend a copy of the order of confirmation, and at the same time tendered him consents for substitution in both causes, and demanded the amount reported by the referee as due him. Townsend refused to pay the amount, or take the substitution, and gave notice that the application for a substitution was abandoned. In fact, upon the argument of the motion for confirmation, plaintiff through his counsel, formally withdrew his application for a substitution,
    Watson then moved, at a special term, for an order that the plaintiff absolutely pay to him, as attorney of the plaintiff, within five days, the amount reported by the referee to be due him. His motion was denied, the following opinion being rendered thereon:
   Van Vorst, J.

—The plaintiff desired to change his attorney. He invoked the aid of the court for the accomplishment of this result. As was just to both attorney and client, a reference was ordered, to ascertain the amount due the attorney for his services, upon the payment of which, the substitution was to be made. After subjecting the attorney to the annoyance and trouble of a reference, and the loss of time and professional services to others incident to his attendance on the trial before the referee, and after prosecuting the proceeding until a report is made, he then abandons his application for a change of attorney, and refuses to pay the amount reported due. Unless the court had believed that the plaintiff’s original application was made in good faith, and with the design of being carried out, it would not have aided him to a reference. An attorney is an officer of the court, and is entitled to its protection, and a court would not willingly make an order, the effect of which would be unnecessarily to harass or vex him in Ms business. A client has a right to change Ms attorney, and the court will aid him to do so, in all cases, in a way to protect the interests of both. It will assist him to ascertain, in a summary way, the amount of the attorney’ s bill and lien. The client having put this proceeding in motion, which is special in its character, should feel himself under an obligation to carry it out. But I do not see that there is any power in the court to compel it to be done, upon the refusal of the client, and the withdrawal of his application for a substitution.

The court can oblige the party to pay the costs of the proceedings, as it does other litigators who come unnnecessarily into court. Plaintiff has paid the fees on the reference, and has been ordered to pay the costs on the motion for confirmation of the report. But I do not see how any order can be made, or if made, how it could be enforced, compelling the client to pay the amount reported due to the attorney. The referee’s report is confirmed, and the value of the attorney’s services is fixed and determined by it. But it is not a judgment to be enforced by execution. If it was, this motion would be unnecessary. This report would, in any action to be brought by the attorney against his client for his services, doubtless fix the amount of recovery. And the report and confirmation of it might be made the foundation of an action in favor of the attorney against the client. If an order was to be made such as is asked for, it should be made, not in any special proceeding between attorney and client, but in this action, in which all papers on the various motions, including the present application, are entitled, and it would embrace for services in another action, between one of the parties to it and his attorney.

A refusal to pay the amount ordered would not render the plaintiff liable to the process of attachment or imprisonment. The amount due the attorney is for professional services, and is a debt only. There is no provision of law which would justify the issuing of an execution upon any such order. Executions are issued to enforce judgments, and to collect costs on motions (Code, § 283 ; Laws of 1840, 333, § 15 ; Laws of 1847, 491, § 2). An order such as is asked for in this proceeding would not "be a judgment within the meaning of that term, nor would it be an order for the payment of costs. I have been referred by the attorney to the case of Buzard v. Gross (4 How. Pr., 23) as an authority which would justify an order such as he asks for, and its enforcement by execution.

But there is nothing in that case which favors this application. The order directed to be made in that case was for the payment of the costs upon the denial of a motion for a new trial. These costs had not gone into the judgment with the general costs. An order was directed to be made that the unsuccessful party should pay the costs, and if not paid on demand, an execution should issue for their payment.

The present application before this court has no relation to the payment of costs between the parties to a suit. The attorney is not seeking to recover costs of his client, the amount of which have been fixed and determined by the court as such,- but he is seeking to collect his claim for professional services. It is a simple debt or demand, the amount of which was liquidated by the referee, as the basis of an order for a substitution of attorney, which has not been carried out.

Motion denied, but without costs.

From the order entered - accordingly, the promovent now appealed to the court at general term.

By the Court.—Barrett, J.

— The facts are very fully stated in the opinion of the learned judge who presided at special term, and his conclusions are correct. The original proceeding was not against, but by, the client, to change his attorney and obtain possession of his papers. The reference was purely incidental, and its effect was simply to establish and advise the court .of the extent of the attorney’s lien. Upon the confirmation of the report the parties stood before the court precisely as though, upon the original hearing, there had been no disagreement as to the value of the services, or "their proper amount had been determined upon the papers by the-court itself. What, in either case, would have been the proper order % Clearly that the attorney deliver up the papers and furnish a substitution upon the payment of - the precise amount of his conceded or thus ascertained lien. With that order, such an application is fully disposed of, and the power of the- court ceases. It is urged, however, that the client, by coming voluntarily into the jurisdiction and accepting the reference, has submitted himself to any order which the court may see fit to grant for the protection of its officer from vexatious litigation. That is true, if by the too general and sweeping expression “ any order " is meant any proper and lawful order. But he has not thereby conferred upon the court any additional power, or any novel jurisdiction. He certainly has not authorized it, on a mere motion without judgment, confession, or even the commencement of an action, to direct the payment of an ordinary debt; nor has he, by its non-payment, subjected himself to punishment as for a contempt. The fact of the creditor being an officer of the court gives him no higher or different status than any other creditor, nor do the labor and vexation attendant upon the proceeding entitle him to more summary or rigid processes than those pointed out by law for the enforcement of ordinary judgments. The rule contended for would prevent a party who has invoked even a favorable exercise of discretion from declining it, if granted conditionally; and would involve our compelling him, under pain of imprisonment, to accept the grace and to comply with the condition. It may be added that so far from having been vexed by fruitless litigation as charged, the facts would seem to justify the conclusion that the attorney has been the sole gainer by the proceeding. He certainly has, without expense to himself, the client having paid the referee’s fees, obtained an adjudication reducing his previously unliquidated claim to a precise and definite sum,- thus fixing the extent of his lien, and settling "beyond further question his rights in respect to the suit and the papers.

The order appealed from should "be affirmed, with costs.

Order affirmed.  