
    Charles Weber, as Guardian of William Gustav Fischer Parbs, an Infant, Respondent, v. Morris J. Werner, Appellant.
    First Department,
    May 6, 1910.
    Attorney and client — action to recover money collected by attorney— defenses — contract between attorney and general guardian of infant — lien on sum collected — burden of proof — evidence — harmless error.
    Where an attorney at law having received a check in payment of moneys due his client, an infant, handed the same to the general guardian, to whose order the check was payable, and received it back when indorsed by him for .the purpose of collecting the check and deducting his "fees and disbursements, he cannot, when sued for the sum collected, contend that the delivery of the check constituted a payment so that the plaintiff cannot recover as for moneys delivered by him to the defendant, in that the suit is brought solely for moneys collected.
    Such position taken by an attorney employed by the guardian of an infant is not only untenable,- but deserves censure.
    Although the attorney on collecting- the check may have had a lien on the proceeds for his services and disbursements, he cannot fix the value of the former nor the necessity or amount of the latter, nor can the guardian, without the sanction of the court, bind the estate of the infant by any agreement concerning these matters.
    
      It seems, that the attorney sued for the moneys collected is under the burden of showing the amount of his lien, and on his failure to do so has no claim against the infant or his general guardian as such, though he may have a claim against the guardian individually.
    A judgment against such attorney in favor of the client will not be reversed because the plaintiff was allowed to give inadmissible evidence respecting the value of the attorney’s services, which resulted in a larger allowance than that to which the defendant was entitled, as the burden was on him to show the value of his services.
    
      Appeae by the defendant, Morris J. Werner, from a judgment .of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 27th day of November* 1909, upon the verdict-of a jury, and also from an order entered in said clerk’s office on the 24th day of November, 1909, denying the defendant’s motion for- a new trial made upon the .minutes.
    
      F. Walter Beebe, for the appellant.
    
      Frank JSerwig,. for the respondent.
   Laughlin, J.:

The defendant is an attorney and counselor at law, and the action .is brought by the general guardian of an infant to recover moneys belonging to the infant collected by the attorney on the employment of the plaintiff. It appears that the infant had an interest in certain real property-in the city of New York, .which was covered by a -mortgage. The mortgage was'foreclosed -and the surplus was paid into court, and in surplus money proceedings, thereafter instituted by the defendant for the plaintiff, the sum of $4,445.88 was awarded to the plaintiff as general guardian of the infant. A cheek was drawn for this amount by the chamberlain of the city on the Metropolitan Trust Company to the order of the plaintiff as general guardian of the infant, ánd it was delivered to the defendant or to plaintiff at defendant’s office. The defendant requested the plaintiff to call at his office at the time the check was to be received. There is a conflict-between the testimony of the plaintiff and that of the defendant with respect to what occurred when-the plaintiff called pursuant to this summons. The plaintiff claims that lie desired to take the check, but that at the instance of defendant he indorsed and left it with defendant on the understanding, that matters between them would be adjusted the next day. The defendant claims that he suggested that plaintiff take the check, but that plaintiff volunteered to indorse the check and left it with him to deduct his charges and pay disbursements, and on this he predicates the further claim that the mere delivery of the'cheek to the plaintiff, it being, payable to the order of the plaintiff, constituted a payment, and that, therefore, the action cannot be maintained, for the delivery of the money to defendant by the plaintiff was not in issue.

The plaintiff alleges that the defendant collected the money, and thereafter paid to the plaintiff only the sum of $2,700, and he demands judgment for the balance, together with interest thereon. The defendant, in his answer, puts in issue the allegations of the complaint to the effect that he collected the money, except that he admits that he received from the plaintiff the sum of $4,445.88.” The defendant then alleges that the plaintiff Weber was appointed special guardian of the infant in a proceeding for leave to sell the right, title and interest of the infant in the real estate; that pending said proceedings the foreclosure action was commenced, and the .plaintiff Weber was appointed special guardian of the infant therein; that “ at the special instance and request of the said Charles Weber as such special guardian,” he rendered services in said proceeding and action, the reasonable value of which was the sum of $1,350, and expended certain moneys for necessary disbursements, and also that it was agreed that he should retain the sum of $250 and apply the same on any recovery on a certain claim which has not yet been determined; that he drew a will for the infant, for which he has not been paid, and that he thereafter rendered an account of his services and of the value thereof, and that the plaintiff paid the same and the disbursements and said $250.

On the trial the plaintiff proved the employment of the defendant, and the receipt, indorsement and delivery of the check as herein stated, and testified that he called at the office of the defendant the day after the check was indorsed, pursuant to their agreement, and that defendant then delivered a check to him for the sum of $25, which, as he claims, the defendant informed him was allowed by the court for boarding and clothing the infant, and another for $2,700, and insisted on retaining the balance of the money for his own services and for other attorneys and for disbursements, and refused to even give plaintiff a statement of the charges and disbursements to enable him to account therefor as general guardian. The plaintiff conceded that the defendant was entitled to retain the sum of $250, subsequently disbursed at his request and the amounts of certain other disbursements, but he claims to have demurred at ttie. time to the deductions made for defendant and for other attorneys for legal services. The defendant claims that plaintiff assented to the charges and deductions. As soon as it appeared that the check was delivered to and indorsed by the plaintiff, the defendant objectéd to any further conversation between the parties and claimed “ that is the end of the transaction.” The objection was overruled and the court allowed the conversation. The defendant contends that this was error. The position taken by the defendant, an as attorney employed by the guardian of the infant, was not only untenable, but it deserves censure. The defendant in effect contends that he claimed no lien on the check, and delivered it unconditionally to the plaintiff and that the plaintiff voluntarily delivered it back to him, and that since this action is brought not to recover, moneys delivered by plaintiff to defendant but moneys collected by defendant for plaintiff it cannot be maintained.

Assuming that the plaintiff did voluntarily release and deliver the check to his attorney, that does not show payment of the moneys belonging to the infant to his general guardian. The claim that by this transaction the general guardian received the moneys belonging to his ward is so technical and without merit that it gives rise to a suspicion concerning the good faith of the argument. It is perfectly manifest that the defendant collected the check and received the money which belonged to the infant. The defendant then, doubtless, had a lien thereon for his services and disbursements, but he. could neither fix the value of the former nor the necessity or amount of the latter, nor could the guardian without the sanction of the court bind the estate of the infant by any agreement with' the defendant concerning these matters. On the defendant’s own theory of the case he relinquished his lien and. then received this trust fund from the plaintiff. On that theory the plaintiff would have been entitled to recover the whole amount of the fund with interest. The most favorable view to the defendant of which the case is susceptible is that he collected these moneys ■ and had a lien thereon. When sued for the moneys the burden was on him of showing the amount of his lien, and on his failure to do so, he has no claim' against the infant or his general guardian as such, but might have a personal claim against the general guardian individually. (Kent v. West, 33 App. Div. 112, 118; Rogers v. Wendell, 54 Hun, 540. See, also, Kowing v. Moran, 5 Dem. 56; Matter of Flint, 15 Misc. Rep. 598; Vilas v. Page, 106 N. Y. 439, 451, and Grant v. Humbert, 114 App. Div. 462.)

The defendant took the stand in "his own behalf, but failed to offer any evidence with respect to the value of his services, and"he objected to evidence on that subject offered by plaintiff.' The plaintiff, by his own testimony and by cross-examining the defendant, attempted to show the services that were rendered, and then called a member of the bar in rebuttal who gave testimony tending to show the reasonable value of the services. It is claimed that this evidence was incompetent on account of the form of the question propounded to the expert. The objection would be well taken were it not for the fact that it was not incumbent upon the plaintiff to show the value of the defendant’s services, and the evidence was not prejudicial to the defendant for it resulted in his being allowed $170 more than otherwise would have been deducted.The amount of all disbursements to which the defendant was entitled was deducted and a verdict was directed in favor of the plaintiff for the balance less the sum of $170 allowed for services.

The judgment and order should be affirmed, with costs.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Judgment and tirder affirmed, with costs.  