
    
      In re Foster.
    
      (Supreme Court, General Term, First Department.
    
    June 19, 1888.)
    1. Attorney and Client—Motion to Compel Attorney to Pay Money—Jurisdiction of Supreme Court.
    The fact that defendant is an attorney, and an officer of the supreme court, does not give such court jurisdiction in a proceeding by motion against him to recover certain warrants drawn payable to petitioners, received by him as attorney and counselor of the court of commissioners of Alabama claims, and which he retains under a claim of lien made in good faith.
    2. Same—Motion against Attorney—Right of Several Claimants to Unite.
    Where an attorney recovered judgments against the United States, in the court of commissioners of Alabama claims, for each of the six different petitioners, on distinct and separate claims belonging to each, they cannot unite in one proceeding against him to obtain possession thereof.
    3. Same—Motion against Attorney—Parties.
    In a proceeding against an attorney to recover United States warrants, received by him as such, and retained in good faith for the protection of rights which, as petitioners allege, do not exist, the persons claiming such rights therein are necessary parties.
    Appeal from special term, Hew York county.
    Petition and notice of motion against George H. Poster, an attorney, by William M. Burgin and five others, to recover the possession of certain warrants of the United States treasurer in favor of each of the petitioners, on judgments recovered in their favor by defendant. The claims on which the judgments were obtained were for war premiums paid by S. & W. Welsh, of Philadelphia, between 1861 and 1865, for each of said petitioners, for whom S. & W. Welsh were acting as commission merchants; the policies being taken out by S. & W. Welsh in their own name, for the benefit of their several constituents. S. & W. Welsh, from the payment of these war premiums until the passage of the act of congress authorizing payment of the same out of the treasury of the United States, had rendered services and incurred expenses, and they also furnished the greater part of the testimony and paid part of the disbursements, in the prosecution of the claims. Defendant claims a lien on the warrants which he has obtained, not only for his fees as counsel, but for services of S. & W. Welsh, and expenses incurred by them. Defendant appeals from an order overruling a demurrer to the petition and an order of reference.
    Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      F. P. Foster, for appellant. C. J. G. Hall, for respondent.
   Van Brunt, P. J.

There is no claim presented upon the part of the moving* parties herein that the attorney proceeded against has in.any way acted in bad faith or from any improper motives. It is conceded that whatever he has done has been done for the protection of rights which he has honestly believed he should protect. While concurring with the opinion of Mr. Justice Daniels, that these proceedings on behalf of different and distinct claimants cannot be united, no authority has been cited which seems to us to justify the court in assuming, under the.facts developed in this case, the summary jurisdiction which is invoked. Eeliance is placed upon what is said by the court of appeals in Re Knapp, 85 N. Y. 284; but an examination of that case shows that the attorney had acted as the counsel for the plaintiff in various proceedings, and had been retained to prosecute a claim against the city; that he had acted as counsel for the petitioner in the contest of the will; and that he had received or collected the claim in his professional character as attorney and counsel, and not as agent. In the case at bar, however, it appears that whatever the appellant has done was done as an attorney and counselor of the court of commissioners of Alabama claims, a court of special and limited jurisdiction, created under the law's of the United States. It had no relation to his office as the attorney and counselor of the courts of this state. The whole of his services was rendered as an attorney and counselor of that court, and of no other. Under these circumstances, it is difficult to see how the supreme court acquires jurisdiction of this attorney, unless in every ease of dereliction of duty upon the part of a person holding the office of attorney and counsel the court has a right to exercise its summary power. We think that the only way in which this summary power can be invoked for derelictions of duty, outside of his relations to his clients as an attorney and counselor of the several courts of this state, must be by an application to deprive him of the right to exercise the duties of that office because of such moral delinquencies as make it improper that he should remain on the roll of attorneys and counselors of this court. In the case at bar, however, no such application is made, and there is no pretense that the attorney has been guilty of any conduct which could be the subject of animadversion; the only claim against him being that he is protecting rights which do not exist, and his attempts to protect those rights are, it is admitted, made in good faith.

But there is another reason why this application should have been refused. Even in those cases where the court has jurisdiction to call an attorney summarily to account, it is laid down in the case cited that there must be a clear case presented against the attorney before these summary remedies can be invoked. In the ease at bar there is a claim that parties who are not represented on this application have liens upon the fund in question; and although it may be a question of law as to whether these liens actually existed, yet the attorney and stakeholder has a right to have that party brought in, in order that the rights of all may be determined, and he not liable over after a judgment against him in a proceeding of this character. The parties claiming or having the right to claim cannot be brought in in this proceeding, and consequently there is not that clear- case which in Re Knapp was said to be a necessary condition precedent to the entertaining of such an application. The order should be reversed, with $10 costs, and disbursements.

Bartlett, J., concurs.

Daniels, J.

This proceeding was commenced by petition, in favor of six different claimants, to obtain possession of warrants for the payment of money received by the attorney under the authority of the court of commissioners of the Alabama claims. This court was created by chapter 459 of the Laws of Congress, enacted in 1874. And by the last section of the act it was provided that the court, on motion, should allow, out of the amount awarded, a just and reasonable compensation to the attorney or counsel for services performed in the prosecution of the claims, and that all other liens, assignments, sales, or transfers, either absolute or conditional, should be absolutely void, when made before the awarding of judgment. By chapter 62 of the Laws of Congress, the existence of this court ceased with the year 1885, and its jurisdiction therefore ended before this proceeding was begun. To support the proceeding in this court, it has been averred, and that has not been denied, that the respondent has during all these times been an attorney and counselor of this court, and that a warrant was issued and received by him in favor of each of the different claimants. But a dispute arose as to the amount which shpuld be charged by Mr. Foster for his services in the prosecution of the claims and receiving the warrants; and this proceeding was taken to settle that dispute, and declare the terms on which the claimants should receive the warrants. The respondent in the proceeding has objected to these different claimants combining together to commence and prosecute it, and, as their claim and demands are wholly separate and distinct from each other, this objection appears to be well taken. It may be, under the rule followed in Bank v. Todd, 52 N. Y. 489, 493; In re Kuhne, 23 Hun, 282; In re Mertian, 29 Hun, 459, 17 Wkly. Dig. 163; In re Fincke, 6 Daly, 111; In re Knapp, 85 N. Y. 284,—that a summary application can be maintained in favor of the respective claimants to adjust the dispute which has arisen between themselves and the attorney, who is an officer of this court, to settle the terms on which the warrants or their proceeds shall be transferred or paid over; but neither of these cases, nor any other, sustains the right of separate and distinct claimants to combine together to prosecute such a proceeding for their separate and individual benefit. In this respect the proceeding is irregular and without authority, and as the objection has been taken, necessarily presented and requiring the decision of this point, it must be held to be well founded; and the order of reference should be reversed, and the application in its present form denied, and the appellant should be allowed $10 costs of the appeal, and also his disbursements.  