
    Edward A. Schmidt, Appellant, v. Massapequa Company, Inc., and Others, Defendants; Gould & Newman and Louis Levy, Respondents.
   The decision of this court handed down on December 29, 1933 [240 App. Div. 1011], is hereby amended to read as follows: Order in so far as an appeal is taken therefrom reversed on the law and the facts, the motion for delivery of all books, papers and documents to plaintiff’s substituted attorney by Gould & Newman and Louis Levy granted, and the parts thereof directing a reference and appointing a referee struck out, with ten dollars costs and disbursements to appellant. On the facts disclosed it does not appear that respondent Levy or respondents Gould & Newman had a valid retaining lien as counsel for the attorney of record for plaintiff, who retained control of the action. They have elected to proceed against plaintiff and his attorney by action; and under those circumstances, with the ultimate rights of the parties a matter of doubt, the court will not lend its summary powers to settling a dispute which may be determined by the more orderly method óf trial. Young, Kapper, Carswell and Davis, JJ., concur; Lazansky, P. J., dissents as to respondent Levy on the ground that the filing of the undertaking waived the right of appeal.  