
    In the Matter of the Application of Charles L. Mitchell and Frank Mitchell, Individually and as Executors, etc., of John Mitchell, Deceased, and Another, for Leave to Sell the Real Property of Said Testator. Charles L. Mitchell and Others, Appellants; John L. Linehan, Respondent.
    
      Substitution of an attorney — when conditional on the payment of his fees.
    
    Where a party to an action seeks to exercise his absolute right to change his attorney, without alleging any misconduct upon the part of the attorney, the court will make the substitution conditional upon the payment of the attorney’s fees or the giving of security therefor.
    Appeal by the petitioners, Charles L. Mitchell and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings .on the 9th day of October, 1900, denying their motion for a substitution of attorneys in the proceeding.
    
      Robert L. Redfleld, for the appellants.
    Ho appearance for the respondent.
   Goodrich, P. J.:

In proceedings for leave to sell real property, the petitioners had retained John L. Linehan, Esq,, as their attorney. They were desirous of substituting other attorneys in his place, and made a motion for such substitution without alleging any misconduct on his part. The court denied the motion and the petitioners appeal. In their brief they cite well-known authorities, which declare the absolute right of clients to change their attorneys at their pleasure.

There is a distinction between cases where a motion of this char- ' acter is based on the misconduct of the attorney and cases where the client seeks to exercise his absolute right to change his attorney. In the former case the court may direct an unconditional substitution and leave the attorney to an action for his fees. In the latter case the court will see that the attorney is protected. (Matter of Prospect Avenue, 85 Hun, 257; Matter of Lexington Avenue, No. 1, 30 App. Div. 602; Barkley v. N. Y. C. & H. R. R. R. Co., 35 id. 167.)

The case at bar falls within the latter category, but as there are no affidavits showing the amount of the attorney’s claim, we are.of opinion that the matter should be remitted to the Special Term, for the purpose of ascertaining, by reference or otherwise, the amount of Mr. Linehan’s fees, and directing a substitution upon the payment of such amount, or the giving of security therefor in such manner and at such time as the court shall consider proper.

The order should be reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term for disposition in accordance with this opinion.

All concurred, except Sewell, J., taking no part.

Order reversed, with ten dollars costs and disbursements, and proceedings remitted to the Special Term for disposition in accordance with opinion of Goodrich, P. J.  