
    In the Matter of the Application of William D. Tyndall, Appellant, for the Judicial Settlement of His Account of His Proceedings as General Guardian of Eston E. Devore, an Infant. John Z. Twichell, as General Guardian of Eston E. Devore, Respondent.
    Third Department,
    January 9, 1907.
    Attorney and client — action by infant in forma pauperis—when surrogate should not pass on attorney’s right to compensation—jurisdiction of Federal court to fix attorney’s compensation.
    The appellant acted, as an attorney for an infant in an action brought to recover damages for injuries received. The action was originally brought in the State court but was transferred to the Federal court, and in both courts the action was brought in foi'rna pauperis. The guardian ad litem, for the infant appointed by the State court entered into a contract with the attorney by which the latter was to receive fifty per cent of the recovery.' The" attorney was subsequently appointed general guardian of the infant and prior to receiving the recovery in the action obtained an ex parte order of the surrogate allowing him fifty per cent of any recovery, with costs and disbursements. Having received the recovery, he petitioned for a judicial accounting as general guardian, in which proceeding the infant was not served with citation, but service thereof was admitted by the infant’s mother and the special guardian. In that proceeding the surrogate made a decree assuming to settle the guardian’s accounts and allowing a payment to himself of the share of the recovery set by the contract with expenses, and another general guardian was appointed for the infant.- Subsequently the appellant petitioned for a supplementary accounting on which the infant was not cited and in this proceeding 1 the special guardian objected to the prior allowance of the sum received by the appellant. The surrogate decided that the former decree was invalid and declined to pass upon the attorney’s claim.
    
      Held, that as the action was brought informa pauperis the attorney was bound to prosecute without compensation, and that the contract for a contingent fee was unenforcible;
    That the former decree purporting to settle the guardian’s accotint and allowing the item'of compensation was wholly without jurisdiction for failure to serve citation upon the infant;
    That upon the second accounting the former adjudication as to the allowance of compensation was not binding upon the surrogate and that it was proper for him to remit the petitioner to the proper tribunal for the adjustment of his rights;
    That under the Federal statutes there is no provision that the attorney for a plaintiff suing informa pauperis shall receive no compensation, and in case of a recovery it is the practice of that court to allow the attorney a quantum meruit;
    
    That although the Appellate Division under sections 2586 and 2587 of the Code of Civil Procedure has the same power as the surrogate to decide questions of fact and to receive further testimony and to reverse or modify the surrogate’s decree, nevertheless as the court did not have before it the order of the Federal court fixing the amount of the attorney’s compensation, the matter should be remitted to the surrogate before whom the determination of the Federal court should be presented.
    Appeal by the petitioner, Williám D. Tyndall, from a decree of the Surrogate’s Court of the county of Sullivan, entered in said Surrogate’s Court on the 30th day of December, 1905.
    Some time prior to December, 1899, Eston E. Devore, ah infant, was injured in a -railroad accident. An action was brought in the Supreme Court of this State against the Delaware, Lackawanna and Western Railroad Company by Mary O. Heater, his mother and guardian ad litem, to recover his damages sustained in such. accident. The action, was transferred to the United States Circuit Court,-and after two trials the plaintiff recovered a judgment' for $21,855.80. William D. Tyndall, the appellant in this proceeding,' acted as the attorney for this infant and for the guardian ad litem. In the State court, before the action was removed to the United States Circuit Court, he procured an order that the action might be brought' in forma pauperis. .After the action was removed to the United States court he procured a similar oi’der in that court, and the action.was thus prosecuted to its- termination.- This judgment was paid to Mr. Tyndall upon June 8, 1903. About a month prior ■ thereto and upon May 12, 1903, the said Tyndall was by the Surrogate’s Court of Sullivan coiinty appointed general guardian of the infant who was then under the age of' fourteen. After the com-, menceinen't of the action in the State court the guardian ad litem entered into an agreement with the appellant that he should receive as compensation for Ins services fifty per cent of the recovery. On June 1, 1903, after the said Tyndall had become general guardian, and about a week before the payment of the said moneys, upon petition by said Tyndall,' an ex parte order was ■ granted by the said surrogate állowing to him the said fifty per cent of any recovery that should be obtained, in addition to all costs and disbursements. ' About a year thereafter, and in May, 1904, Mr.,Tyndall filed in the Surrogate’s Court a petition entitled : In the Matter of the Judicial Settlement of the Account of Proceedings of William D. Tyndall, General Guardian of Eston E. Devore, an Infant, in which, after alleging his appointment as general guardian, he averred,, following the language of section 2849 of the Code, that he was desirous of rendering an account of all his proceedings,^ such general guardian, of having the same judicially settled, and of being discharged from his duties and liabilities, and for that purpose he prayed that a citation might issue to the infant and Mrs. Heater, his mother. Upon this petition a citation was issued, dated the twenty-eighth day of May,, and returnable at two o’clock in the afternoon of the 13th day of June, 1904. The citation was addressed not only to the infant and Mrs. Heater, but to John D. Lyons, Esq., .special guardian for said infant on accounting. The only purpose of the proceeding as stated in the citation was to examine the accounts of William D Tyndall, general guardian of Eston E. Devore. The citation was not served on the infant. Instead of such service- was an admission of service upon the mother and the special guardian so appointed. In' the proceeding thus begun Mr. Tyndall filed accounts as general guardian in which he charges himself as guardian with the amount of the judgment -collected from, the Delaware, Lackawanna and Western Kailroad Company, amounting, as stated, to $21,855.80, and credits himself with the payment of $12,813.80, made to' himself as attorney, as the amount of his “ fee per order,” referring evidently to the earlier ex parte order of June 1, 1903. TJpon the said date the surrogate made a decree which assumed to settle the guardian’s accounts as filed, showing a balance remaining in his hands of only $8,848.05, directed that out of this amount further payments aggregating $511.99 be made, and directed the payment of the remainder, to wit, $8,326.06, to his successor in office. Nothing further was done until January, 1905, when Mr. John Z. Twichell was appointed by the surrogate the guardian of said infant to succeed the appellant Tyndall. Thereafter, and.upon March 17, .1905, the appellant Tyndall filed a further petition in which the accounting and decree before mentioned were referred to and ,the appointment of Mr. Twichell as the successor general guardian averred. In that petition request was made that a citation be issued to all parties named therein, to the end that said Tyndall might render a supplemental account, and upon the passing of the same might turn over the funds, securities, books and papers to his successor in office: The citation was returnable April 1-7, 1905. This citation, like the earlier one, was addressed not only to the infant and his mother, but to John D. Lyons as “ special guardian for said infant on accounting.” Upon this accounting a balance was, shown by him of $8,541.57, to be distributed to the ward or paid to Mr. Tyndall’s successor in office subject to the expenses of the accounting. Upon this accounting, however, Mr. Lyons, the special guardian, objected to the item of $12,813.80 received by Mr. Tyndall, and the surrogate decided that the decree and oz’dér theretofore made in respect of this item were invalid and declined to pass upon the claim. For these reasons the claim was disallowed and the guardian was charged with the full amount of the moneys under the judgment agaizist the Delaware,- Lackawanna and Western Kailroad Company, less certaizz. expenses, and by reason of the suppósed lack of jurisdiction the surrogate declined iipon the accounting to allow liim anything for services in said action but directed that “the, matter-should be -held open for a reasonable time to; allow the guardian, an opportunity to have his claim adjusted by the proper authority so that' he can be credited with the amount- awarded to him on turning over the estate to his successor.” In the decree made tins date was fixed as April 1, 1906, or three months after the making thereof. From this decreé Tyndall has appealed, claiming that the surrogate erred in refusing to allow to him the compensation provided for in the agreement with the special guardian and in the decree of June 13,1904.
    
      Walter K. Barton, for the appellant.
    
      Parsons, Closson & MclVoaine \_William M. Camochan of counsel], for the respondent. - ■
   Smith, J.;

The expa/rte order of June 1, 1903, approving of the . contract between the special guardian -and Tyndall is ineffective- against this infant, who was not a party to the proceeding. Moreover the contract was made while'the action was being prosecuted by the plaintiff in forma pauperis,and by section 460 of the Code of Civil Procedure Tyndall was bound to prosecute that action withqtit compensation and the contract was, therefore, unenforcible. The decree of June -13, 1904, purporting to settle the accounts of Tyndall and allowing this item as compensation was wholly without jurisdiction for failure to serve the citation upon the infant himself, (Potter v. Ogden, 136 N. Y. 384.) Upon the accounting, therefore, which resulted in the decree from which this appeal is taken there was no adjudication binding upon the surrogate as to the allowance of this compensation, and he- was free to act upon the facts ás were then presented to him. In the opinion of the learned surrogate he states that he was; without jurisdiction to pass upon this claim, but that the allowance ;of compensation must be determined by the court in which the action, was tried. (48 Misc. Rep. 39.) The decree itself, however, only declined to allow compensation Until the same'shall be determined by “ the proper tribunal,” In our view of the case it is. unnecessary to decide whether or not the surrogate could have assumed jurisdiction to pass upon this claim. He might well, as matter of pro- . priety or discretion, have declined to pass upon it and sent the parties into the United States court for the determination thereof. Upon an appeal from a surrogate's decree this court has the same power to decide the questions of fact that the surrogate had, and may, in its discretion, receive further testimony, and may affirm, reverse or modify the decree or order appealed from as to any and all parties. (Code Civ. Proc. §§ 2586, 2587.) These provisions of the Code have been held to give the Appellate Division upon these appeals the power of the surrogate himself. (Matter of Rogers, 10 App. Div. 593; Matter of Laudy, 78 Hun, 479; Matter of Drake, 45 App. Div. 206; 60 N. Y. Supp. 1023.) If, in our judgment, the decree appealed from be a proper one, we may affirm it, although based upon an erroneous conception either of the facts or of the law. While under the United States, statutes there is no provision as is found in our statutes that in an action brought by a plaintiff vn, forma pauperis the attorney shall receive no compensation, nevertheless, the right of an attorney to receive compensation is held by the United States courts to be under the control and guidance of that court, which, notwithstanding an agreement for specific compensation, will, nevertheless, determine the compensation to be allowed the attorney as upon a guantum mer uit. In Whelan v. Manhattan R. Co. (86 Fed. Rep. 219, 220) the rule is thus stated by Judge Lacombe : “ Once it is shown to the court that there is a cause of action worthy of a trial,’ which plaintiff, a citizen of the United States, cannot prosecute without incurring indebtedness, which such citizen is too poor to pay, then Congress prepares a way whereby such poor citizen may have his day in court without incurring such indebtedness. Hot only is he to be relieved from securing the costs of his adversary, but an attorney is to be provided for him by the court, who will prosecute his cause of action without stipulating for some compensation in the event of success larger than the guantum meruit. In other words, the ‘ poor citizen ’ will not be compelled, by reason of his poverty, to enter into any contract more oppressive than such as could be made by his more fortunate fellow-citizen. The attorney assigned by the court, in the event of non-success, will, of course, receive nothing; in the event of final success, he may apply to the court for an order fixing a fair compensation for thé services he may actually render, which will be paid to him out of the fund recovered, and the balance Only paid over to plaintiff. .

“ If the attorney who brought the action is willing to continue the litigation on those terms, he will be assigned to represent plaintiff ; if not, the court will find some other attorney to prosecute her . cáse.” '

- We are of opinion that the-decree made was an eminently proper • one and should stand. ' ,

Counsel both for thé appellant and respondent stated upon the argument that, since the making of this decree application had been . made in the United States court for a determination of the amount of compensation which- should be paid to this attorney; -that a hearing was had before a master who determined that the appellant should have one-third of the recovery-in addition to certain allowances for expenses. This report of the master was confirmed by the court,- after allowing to the. attorney an additional sum for expenses. If .these facts had been put before us formally, wé might here perfect the decree without sending the matter back to the surrogate. Without the figures stipulated before us, we must send the matter back to the surrogate, before whom the determination of the United States court can be presented. The time within which the appellant was authorized by the decree to present the' order of the United States court was fixed as April 1, 1906. That time should be extended to March 1, '1907, and the decree so modified, and as modified affirmed, with costs. ••

All concurred; Parker, P. J., not sitting.'

Decree modified as per ' opinion, arid as modified affirmed, with costs. ■ .  