
    Robert Martucci, an Infant, by Joseph Martucci, His Guardian ad Litem, et al., Appellants, v. Brooklyn Children’s Aid Society et al., Defendants. Desmond T. Barry, Respondent.
    Submitted November 18, 1940;
    decided December 31, 1940.
    
      
      Charles A. Loreto and Louis Napolitano for appellants.
    
      Desmond T. Barry, in person, and Edward A. Shandell for respondent.
   Per Curiam.

The respondent, having as the appellants’ attorney instituted an action to enforce a cause of action of appellants against a third party, had a charging lien upon the cause of action for bis services rendered in the action. (Judiciary Law, § 475 [Cons. Laws, ch. 30]; Matter of Heinsheimer, 214 N. Y. 361, 365.)

The appellants moved for a substitution of attorneys and asked that the value of respondent’s services be determined. Respondent relied on his lien and sought to have the value of his services fixed at $500. An order is before us which fixed respondent’s lien at twelve and one-half per cent of any recovery secured or settlement made, but in no case less than $400.

Appellants urge that respondent’s hen cannot be fixed on a percentage basis. Respondent is entitled to compensation on the basis of quantum meruit. A percentage allowance does not fall within the description of quantum meruit. The amount of recovery or settlement wifi depend on factors with some of which respondent has no concern. However, the terms of the retainer contract, now at an end, may be taken into consideration' in fixing the value of the lawyer’s services. (Matter of Tillman, 259 N. Y. 133; Matter of Montgomery, 272 N. Y. 323.)

The orders should be reversed, with costs in all courts, and the matter remitted to the Special Term to fix the amount of the respondent’s lien in accordance with this opinion.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Ordered accordingly.  