
    Eddie Bryant, an Infant, by Mary Harper, his Guardian ad Litem, Appellant, v. The Brooklyn Heights Railroad Company, Defendant. William O. Miles, Respondent.
    
      Retainer of an attorney by the mother oj an infant injured on d railroad—order of substitution granted on her application as gua/rdia/h ad litem —proper provision for the attorney’s compensation.
    
    A contract made by the mother of an infant who was injured on a street railroad, by Which she retains an attorney to prosecute an action against the railroad company on-behalf of the infant and agrees to pay him forty per cent of the recovery, is not binding upon her as guardian ad litem, and if, after the action brought by her as guardian has been commenced by such attorney, the guardian ad litem wishes to have another attorney act for her, an order of substitution will be granted. .
    The court will not make the order of substitution conditional upon the payment to the original attorney of compensation for the services rendered by him'up to the time when he was notified that his services would no longer be required, where it appears that the guardian ad litem is not in possession of any jnoney out of which to make such payment, but it will protect the attorney’s rights' by inserting in the-order of substitution a provision that, in the event of a., recovery, no portion thereof shall be paid out without' notice to the original attorney in order that he may have an opportunity to have the amount of such compensation fixed.
    Appeal by the plaintiff, Eddie Bryant, 'an infant, by Mary Harper, Ms guardian ad litem, from an order of the Supreme Court, made at' the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of May, 1901, denying the plaintiff’s motion for a substitution of attorneys.
    
      J. M. Birnbaum, for the appellant.
    
      William O. Miles, for the respondent.
   Goodrich, P. J.:

This action is. brought by Mary Harper, the mother and guardian ad litem of the infant who is alleged to have been injured on the defendant’s railroad,

On the day of the accident a representative of Mr. William O. Miles went to the house of Mrs. Harper and procured from her a contract in writing, by which she retained Mr. Miles to prosecute an action against the company and agreed to pay him forty per cent of whatever money or equivalent might be realized by her upon her claim for damages for the injuries received by her son.

In one of the affidavits upon which motion was made for the substitution of Mr. J. M. Birnbaum as plaintiff’s attorney in place of Mr. Miles, Mrs. Harper swears that she was very much excited at the time she signed the paper, and acted without any forethought, and that directly after, and upon careful deliberation, she decided it would be more advisable to retain an attorney in whom she could place implicit confidence, Mr. Miles being a total stranger. On recommendation of some of the neighbors she sent for Mr. Birnbaum and had him act for her thereafter, and desires to have him act for her in the future. .

The application for substitution was denied at Special Term, without opinion. It appears to me that it should have been granted. Whatever effect can be given to the contract of Mrs. Harper, it could not bind her as guardian ad litem in this suit. The recovery herein, if there ever is any, will be absolutely under the control of the court, and no part of it can be paid to any attorney without' the sanction and order of the court. Under the rule that a client is entitled to change his attorney at will, Mrs. Harper has a perfect right to have Mr. Birnbaum substituted for Mr. Miles, and such change carries with it no imputation against Mr. Miles.

Ordinarily, such a substitution would not be ordered without pro-' viding for the payment of the former attorney, or requiring that security be given for his payment. Here, a payment cannot be required, for the guardian ad Utem evidently is not in possession of any money out of which to make such payment. On the other-hand, Mr. Miles should undoubtedly be paid the reasonable value of the services which he performed up to the time that he was notified by Mrs. Harper that his services would no longer be required.

The court in granting the order of substitution can insert therein a provision to the effect that in the event of a recovery in the action no portion thereof shall be paid out without notice to Mr. Miles, so that he may have an opportunity to have the amount of his compensation fixed, and it can be awarded to him at the same time that provision is made for the payment of the substituted attorney.

I think the order should be reversed and the motion for substitution granted, upon the terms which I have suggested.

Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred.

Order reversed and motion of substitution granted, in accordance with the opinion of Goodrich, P. J.  