
    Frederick I. Haber, as Executor of David R. Haber, Deceased, Appellant, v. Florence Brooks et al., Respondents.
   Order, entered January 10, 1963, unanimously reversed, on the law, with $20 costs and disbursements to the appellant, and motion by plaintiff for summary judgment granted and judgment directed for plaintiff against the defendants in the sum of $1,000 with interest on $600 from January 24, 1962 and with interest on $400 from March 19, 1962, with taxable costs and $20 costs of the motion. The plaintiff, an attorney, now deceased, formerly represented a wife, a defendant here, in a matrimonial action against her husband; and a firm of attorneys, also defendants here, was substituted for plaintiff under a stipulation whereby it was agreed that the plaintiff was to be paid and have a lien to the extent of “ forty (40%) percent of the gross counsel fee paid to client and/or counsel pursuant to court order and/or separation agreement which may be signed by the parties”. A separation agreement later entered into between the parties provided in effect that the wife was to assume the obligation of payment of counsel fees theretofore incurred and owing to her attorneys, and, following such agreement, she did pay $2,500 as counsel fees to the substituted attorneys ($1,500 being paid on Jan. 24, 1962 and $1,000 on March 19, 1962). Under the circumstances, we have concluded that there is no issue of fact, since under the only fair and proper construction of the terms of the stipulation of substitution and of the terms of the separation agreement, the plaintiff was entitled to receive 40% of the sum of $2,500 paid as counsel fees, as aforesaid. Settle order on notice. Concur — Botein, P. J., Breitel, Rabin, Stevens and Eager, JJ.  