
    Edmund Bittiner, Respondent, v. Mayer C. Goldman, Appellant.
    (Supreme Court, Appellate Term,
    May, 1897.)
    Attorneys — Liability of substituted attorney to Ms predecessor.
    An attorney who has been substituted in the place of the attorney for the plaintiff in an action for divorce after the procurement of. an order for counsel fee and alimony, on consent of the plaintiff that the former attorney be paid the counsel fee and $25 out of the alimony,.is relieved from liability to pay the additional sum of $25 where the decree is subsequently modified, on motion of the, de-. fendant ih the divorce- suit, so as to reduce the amount of alimony, but is liable for the counsel fee upon collection thereof.
    Appeal by the defendant from a judgment of the justice of the Thirteenth District Court in favor of the plaintiff for $51.50 damages, besides costs.
    Louis Wertheimer and Wertheimer & Duffy, for appellant.
    Abraham Nelson, for respondent.
   Daly, P. J.

The facts appearing upon the second trial of this action differ from those before the court on the former appeal. Bittiner v. Goldman, 19 Misc. Rep. 146; 43 N. Y. Supp. 387. Our decision was then based upon the apparent. fact that after the stipulation for the payment of plaintiff’s compensation, out of the alimony and counsel fee to he collected under the order of October 14, 1895, this defendant procured a modification of such "order, or a substituted order, by which the alimony was reduced.

It appeared on the second trial that such reduction was made, not by the procurement of this defendant, hut on- the - motion of his adversary in the divorce suit who was thereupon relieved from paying the alimony formerly allowed. This defendant, therefore, is not barred from claiming that such reduction affects the right of the plaintiff to enforce the stipulation upon which he relies.

The stipulation provided that, in the event of the alimony and counsel fee being collected, the plaintiff was to have the counsel, fee of $25 and the further sum of $25, to. he deducted from the alimony. The. payment of this latter sum was clearly contingent upon the. collection of the alimony, and as such collection was made impossible, not by the act of the defendant, but by the act of the court in modifying the original order, the right to the payment of that sum ceased with the fund out of which it was payable. The payment of the $25 counsel fee was, however, a separate matter and was dependent only upon the collection of the counsel fee mentioned in the order. As the defendant got it, he should pay it over for the reason given in the former appeal.

Judgment modified by deducting $25 and affirmed for the residue: No costs on this appeal.

McAdam and Bischoff, JJ., concur.

Judgment reduced by deducting $25 and affirmed for residue, without costs of appeal.  