
    Waterbury et al. v. Eldridge.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    Attorney and Client—Compensation.
    On petition to compel an attorney at law to pay over money collected by him for petitioners, and which he claims a right to retain in payment for services rendered them, where it appears that the attorney had rendered his hill for such services up to a certain date, which had heen fully paid, and the value of his services since that date can he readily ascertained, it is proper for the court to decide that value, allow the attorney to retain it, and order him to pay over the balance to petitioners, without appointing a referee, or leaving petitioners to an action at law. Dykman, J., dissenting.
    Appeal from special term, Kings county.
    Petition by James M. Waterbury and others to compel George 0. Eldridge, an attorney at law, to pay over to petitioners the sum of $2,500 collected by him as their attorney, and which he claimed a right to retain in payment for services rendered petitioners. It appeared that the attorney had rendered a bill for his services up to a certain date, which was fully paid, and the court found that his services since that date were reasonably worth $500, and ordered that he should pay over the remainder to petitioners. Eldridge appeals.
    Argued before Barnard, P. J., and Pratt and Dykman, JJ.
    
      George W. Miller, for appellant. Hubbard Hendrickson, for respondents.
   Pratt, J.

The decision of the court below in this matter was as liberal to the defendant as the facts warranted. There was no occasion to send the matter to a referee, or turn the petitioner over to his action, as it clearly appeared without dispute what services the respondent had rendered since he was paid; and the value could be estimated readily and properly by the court. The respondent had rendered his bill with items, and set a price upon his services, and was fully paid. The principle upon which the court below acted was sound, and well sustained by authority. Williams v. Glenny, 16 N. Y. 389; People v. Asylum, 96 N. Y. 641; In re Mertian, 29 Hun, 459; In re Friedman, 27 Hun, 301. It was too late, after receipt of the money from the city of Brooklyn, to seek to open an account that had been previously settled in full. Order affirmed, with costs.

Barnard, P. J., concurs.

Dykman, J.,

(dissenting.) This proceeding was for the procurement of an order to compel the summary payment of money by a lawyer to his clients. The proceeding was inaugurated by a petition of the clients, which contained a statement *ot the transactions with the attorney, which was answered by an affidavit of the lawyer and another person, and then there was an affidavit in reply, and upon those papers an order was made at special term requiring the attorney to pay over to his clients the sum of $2,500. It appeared from the papers presented that the lawyer had collected considerable sums of money for his clients, and had also performed laborious professional services for them in important litigations and beneficial negotiations. His claim was and is that the sum of $2,500, which he had retained, and which is the sum in dispute, was no more than a just compensation for his services so rendered to his clients, and that he retained the same for that reason. A fair and important issue was thus raised between the parties, which required proof for its determination. The allegations of the petitioners on one side, and of the respondent on the other, were not proofs. They were in the nature of pleadings, and it was not competent for the court at special term to decide the question involved, and make the order appealed from without the introduction of proof under the common-law rules of evidence. Such proofs could have been introduced before the special term, or before a referee appointed for that purpose. In re Eldridge, 82 N. Y. 161; In re Knapp, 85 N. Y. 284. The order appealed from should be reversed, with $10 costs and disbursements.  