
    Winifred F. Harding, Formerly Winifred F. Jones, Plaintiff, v. Eva K. Conlon, Respondent, Impleaded with Others, Defendants. Frederic J. Swift, Appellant.
    First Department,
    November 10, 1911.
    Appeal — motion for reargument — attorney and client — attorney’s retaining lien.
    An order denying a motion for reargument is not appealable.
    An attorney at law, who actually has' charge of a ease, and acts as attorney and counsel with the knowledge and consent of the.client, although not the attorney of record, has a hen upon the client’s papers lawfully coming into his hands for use in the htigation for his expenditures in conducting the suit¡ although he has no statutory lien under section 475 of the Judiciary Law.
    Scott, J., and Ingraham, P. J., dissented, with opinion.
    Appeal by Frederic J. Swift from an order of the Supreme Court,.made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of September, 1911, directing him to forthwith deliver to J. Noble Emley, Esq., the present attorney for the defendant Oonlon, “.all papers, documents, letters and exhibits and all papers in any way relating to this action ” now in his hands, and also, as stated in the notice of appeal, from an order entered in said clerk’s office on the 2ist day of September, 1911, denying the appellant’s motion for a'reargument.
    
      Frederic J. Swift, appellant, in person.
    
      Jay Noble Emley, for the respondent.
   Laughlin, J.:

The order denying the motion for reargument is not appeal-able, and the appeal therefrom is, therefore, dismissed, but without costs.

The purpose of this action was to procure the cancellation of a deed, and the record thereof, to the premises known as 121 Worth street, in the city of New York, executed by the husband of the defendant Oonlon to her, on the ground that it was a forgery. She appeared in the action by Marsh & Bennett, but the date of their appearance for her is not given. It appears, however, that the action was pending in the month of April, 1910, for an agreement in writing, recited to have been made on the blank day of April of that year, was executed by the defendant Oonlon and by Marsh, one of the firm of her attorneys, who, it was recited, had been retained as her attorney to defend the action, “and to conduct such other proceedings in connection therewith as he. may deem necessary or advisable to protect her and to secure to her her rights and title in' and to” the premises, and delivered to the appellant, whereby the appellant was retained “ to co-operáte ” with said Marsh “to a final termination” in the defense of this action, and in the prosecution of an action then pending, which had been brought by the defendant Oonlon against the plaintiff for ejectment with respect to the same premises, and to recover rent therefor, and in making a motion in another action entitled Jones v. Kelly, which it was deemed might have some effect on the defendant Oonlon’s rights in the preinises. The agreement recites that the defendant Oonlon had theretofore agreed to pay said Marsh the sum of $4,000 and the costs of the action, in the event that the deed to her of the premises should be finally' sustained, and twenty-five per cent of any back rents recovered in the ejectment action, together with the costs thereof. The agreement also recites that Marsh agrees to assign and does thereby assign to the appellant, of the $4,000 which he was to receive under the agreement, the sum of $3,000, and of the twenty-five per cent of the rents collected twenty per cent thereof and one-half of said costs. The defendant Conlon therein agreed to make payments of the said $4,000 and twenty-five per cent of the rents collected or received in settlement of said litigations, and the' costs, to the appellant and said Marsh in said proportions, and “to pay all necessary expenses of said actions and proceedings.” The appellant did not sign this agreement,' but according to his, affidavit it was negotiated at the instance of the defendant Conlon, who applied to and retained him personally, and that, as he did not desire to oust said Marsh as attorney of record, the'agreement was made aiid he has acted under it ever since in the conduct of the litigations to which it refers, apparently performing duties of both attorney and counsel, and this would seem to be borne out by the records on the various appeals to this court therein. It is not controverted that the appellant appeared for the defendant Conlon and with her knowledge and consent in said litigations; but it is contended that he refused to accept said agreement, and that his appearance was merely in the capacity of counsel under a retainer from said Marsh. It is conceded that the appellant, in the course of his employment in connection with said litigations, incurred various disbursements, and he has been paid on account thereof by the defendant Conlon the sum of about $2,200, and that in the course of said employment there came into his custody and possession certain -papers, in addition to the pleadings in this action, relating to this action, consisting of exhibits and other papers and documents which, by the order from which the appeal has been taken, he has been directed to turn over to her present attorney of record, and a stay of proceedings thereunder having been denied we were informed on the argument that the order has been complied with.

On the 9th day of June, 1911, an order was entered on cónsent of the defendant Oonlon and said Marsh & Bennett substituting Jay Noble Emley as attorney of record for the defendant Oonlon. The moving papers show that at the time of this substitution Marsh agreed to deliver all the papers in the action to said Emley, but that this was not done and that said papers were in the possession of the appellant, who refused to deliver them. An affidavit of the defendant Oonlon, constituting one of the moving "papers, states that she has paid the appellant “in full for all disbursements which he has made in this action with her knowledge,” and that he had refused to prosecute 'an appeal from the judgment rendered against her in this action unless he was secured or paid the sum of “ about Five thousand dollars,” and that he stated that he did not wish to represent her on said appeal. The appellant, in his affidavit read in opposition to the motion, denies that he refused to represent her on the appeal, or that he demanded security for his services, and denies that she has paid him in full for' his disbursements incurred by her authority; and it is further stated therein that only $500 of the $2,200 paid has been on account of this litigation, and that' this payment was on account of a charge of $900 for services of a handwriting expert employed by him with her knowledge, whose services were used for her benefit in the action, and $81.82 for disbursements necessarily incurred by said expert. The appellant, in a letter annexed to his affidavit, shows that he claims to be obligated to said expert for the balance of said bill, but such liability on his part is not satisfactorily shown. Another item of disbursements alleged to have been incurred by the appellant in this action is $500 paid to one Palmer as counsel for assisting in the trial of the action, of whose employment the defendant Oonlon was notified in advance. It may be inferred that she made no objection to such employment, but whether the circumstances were such that she was justified in accepting Palmer’s services as part of the services which were to be rendered by appellant or as additional services for which she was to pay has not been clearly shown. The appellant also claims a further balance due and owing to him from the defendant Oonlon, on account of disbursements in this action, and in other litigations incurred by her authority in the sum of about $275.

The court granted the motion, and filed a memorandum opinion showing that it was granted upon the ground that the appellant was merely employed as counsel and had no lien upon the papers, and without passing upon the question as to whether the disbursements for which a lien is claimed or any part of them were necessarily incurred, or incurred by her authority. .

We are of opinion that the court erred in deciding that the ' appellant had no lien on the papers in his possession. Although the appellant was not the attorney of record,'he virtually had charge of the case with the knowledge and consent of the defendant Conlon, in effect as such. Not being attorney of record, however, he had no statutory or charging lien by virtue of the provisions of section 66 of the Code of Civil Procedure, as revised by section 475 of the Judiciary Law (Consol,. Laws, chap. 30; Laws of 1909, chap. 35); but he does not claim a charging 'or statutory lien, nor does he even make any claim, for services. He merely insists that he is entitled to be reimbursed for the disbursements necessarily incurred, or incurred by authority of the defendant Conlon before he can be deprived of the custody and possession of the papers, including the exhibits in the action. If there were no action pending, ;t is perfectly well settled "that he Would have a lien, regardless of the statute, upon any papers which lawfully came into his possession by her authority for any services rendered to his client, of which he' could not be deprived without payment or security for payment for his services.. (Matter of H-, an Attorney, 87 N. Y. 521; Bowling Green Savings Bank v. Todd, 52 id. 489; Ward v. Craig, 87 id. 550, 560.) It has not been adjudged here that the appellant has been guilty of any breach of his obligation to the client by which he has forfeited his lien.

The learned counsel for the respondent attempts to sustain the order upon the theory that the appellant was not employed as an attorney, but only as counsel in the action, and that as such he has no lien. If, as contended by the appellant, the entire charge and control of the case was turned over to him without a formal substitution, he has good ground for contending that" he was in fact employed as attorney, although he did not become attorney of record; but we do not deem it necessary to place our decision on this.ground, for we think that the line of demarcation with respect to services rendered as counsel and as attorney, although it .is recognized for certain purposes (Easton v. Smith, 1 E. D. Smith, 318), is not such in this jurisdiction as to deprive a member of the bar who renders services both as attorney and counsel in an action, at the instance or with the knowledge and consent of the client, which appears to be the case here, in which he is not the attorney of record, of a hen upon papers of the client lawfully coming into his hands for use in the conduct of the litigation. As already indicated, the court‘at Special Term did not pass upon the liability of tho defendant Conlon for the disbursements claimed by the appellant or determine that he had been guilty of any breach of his obligation to his client by which he forfeited his right to a lien (Matter of Rieser, 137 App. Div. 177), but decided the motion upon the theory that not being the attorney of record he had no lien.

We are, therefore, of the opinion that the matter should .be remitted to the Special Term, to be decided on the merits on such further proof by affidavit as either party may present, or by reference, as the court may deem necessary, and that at the same time an application for restitution may be made, and if it shall be determined that the appellant has incurred any disbursements for which the defendant Conlon is liable, that the papers be ordered returned to him and that he be adjudged to be entitled to retain the possession thereof until the amount for which the defendant Conlon is liable, as determined by the ■court, shall be paid, or until security therefor shall be given, with ten dollars costs and disbursements of the appeal to appellant.

Clarke and Miller, JJ., concurred; Ingraham, P. J., and Scott, J., dissented.

Scott, J.

(dissenting):

I dissent. The relations between the appellant arid Mrs. Conlon are defined by the agreement signed by herself and her attorney Marsh, and dated April, 1910. It is true that the appellant did not sign the paper, but he expressly alleges in one of his affidavits that he did in April, 1910, make a contract with, said Eva K. Conlon and James H. Marsh, a copy whereof is hereto annexed and marked ‘ Exhibit A.’ ” This is • the contract above referred to. That' contract recites the retainer by Mrs. Conlon of James H. Marsh as her attorney in certain litigations, and her agreement to pay him the sum of $4,000, and costs, contingently upon a successful issue of one of said- litigations, and twenty-five per cent of the back rents to be' recovered in. an action in ejectment then just begun. This compensation was also necessarily contingent upon success. It was then recited that said Marsh and1 said Conlon desired the “ co-operation ” of relator in conducting and carrying on said litigation to a final termination thereof. ’ Just what was meant by “ co-operation ” is not made clear. He evidently was not to co-operate as attorney of record, for Marsh continued in that capacity. Since no other form of “co-operation” is suggested, it seems clear that the expectation was that he should act as counsel, and that this was the understanding is borne out by the fact that he apparently did act as counsel in certain appeals in this court and the Court of Appeals. If this was his relation to the case, .and it was conceded that he never was attorney of record, I am of the opinion that he never acquired a retaining lien upon papers which came into his hands in order to enable him to act as counsel. He does not claim a statutory lien under the provisions of section 66 of the Code of Civil Procedure, as revised by section 4*75 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), but does claim á common-law lien irrespective of the statute.

I do not understand that counsel as such has ever been held to be entitled to such a lien. There are many cases which protect an attorney’s lien, but that is not what we' have to deal with here. While the distinction between attorneys or solicitors and counsel or barristers is not now recognized in this State as constituting different grades in the profession, the distinction, still exists with regard to the services to be rendered and the relation held towards clients when, as in Mrs. Conlon’s cases, both an attorney and a counsel are retained. One distinction which certainly existed at common law, and which L believe exists to-day, is that an attorney, as such, has a retaining lien upon documents belonging to the client which came into his hands, while a counsel, as such, has no lien. It would serve no good purpose to comment upon the cases dealing with attorneys’ liens, for none of these deals with the question of the lien of one who is employed only as counsel. I do not overlook the fact that by the agreement above mentioned Mrs. Con-Ion agreed to pay the necessary expenses of the actions. This does not, I think, alter the aspect of the case, for her agreement to pay the necessary expenses would be no more than the law would, impose upon her in any event. But in the absence of some express agreement that the counsel shall advance the ' expenses, and there is no such agreement here, the advance of expenses is no part of the obligation of a counsel as such. Finally, the bulk of relator’s claim is made up of a counsel fee jiaid to yet another counsel, and a large sum paid or to be paid to a handwriting expert. These are not the ordinary but rather extraordinary disbursements in a lawsuit. When Mrs, Cónlon agreed to pay the “ necessary expenses ” of the action she must, I think, be taken as agreeing merely to pay the ordinary expenses usually attendant upon actions at. law, and not extraordinary expenses such as those now under consideration, especially where both attorney and counsel have agreed for compensation contingent upon success. If it was intended to hold the client for such “ expenses,” her acquiescence should have been obtained before they were incurred. The relator seems to have fully understood this, because as late as January 9, 1911, we find him pressing for the payment of a large sum theretofore advanced, and saying that unless arrangements were made for his reimbursement he would refuse to go further with the case. He proceeds, “and as the case is now virtually about being reached for trial it means that if I continue with the trial I have to pay out of my pocket before the trial begins the sum of $500 to Mr. Palmer and guarantee the fees of the expert whatever they may amount to, and I shall not do. any such thing. I prefer to quit now.” It is not contended that Mrs. Oonlon authorized the expenditures or agreed specifically to pay them. Indeed it is clear that she did not. That, notwithstanding this fact, the relator went on and made the expenditures is perhaps to be accounted for by his desire to realize upon his contingent agreement for compensation. At all events, I do not think that it established a claim which can be the basis of a lien in favor of one who was merely counsel in the case, and not the attorney. As to relator’s disbursements for printing, which were doubtless necessary expenses, the substituted attorney' offered to pay them, and the offer was refused. They should not, therefore, be made the foundation of a lien. In my opinion the order appealed from was right and should be affirmed.

Ingraham, P. J., concurred.

Appeal from order denying motion for reargument dismissed, without costs. Matter remitted to Special Term for decision,, as indicated in opinion, with ten dollars costs and disbursements of appeal to appellant. Order to be settled on notice.  