
    SUCH v. BANK OF STATE OF NEW YORK.
    (Circuit Court, S. D. New York.
    February 27, 1903.)
    1. Attorney and Client — Substitution of Attorney — Pees—Determination.
    Where an attorney contracted to prosecute a cause for 15 per cent, of the proceeds of any recovery, and an application was made by plaintiff before termination of the cause for substitution of attorneys,' the fees to be paid as a condition to such substitution could not be fixed with reference to the future course of the litigation, but should be determined by the reasonable value of the services to the date of substitution.
    Motion for Order of Substitution of Attorney for Plaintiff.
    Harrison & Byrd, for the motion.
    James Parker, opposed.
   LACOMBE, Circuit Judge.

It was conceded by both sides on the argument that plaintiff and his attorney had entered into a contract by which the attorney was to prosecute the cause, and in the event of final recovery was to be paid 15 per cent, of the proceeds. By insisting that another attorney shall now be substituted, plaintiff is presumably breaking that contract, and in the proper way and at the proper time the attorney will presumably have an opportunity to recover damages for that breach. It would therefore be improper upon this application to fix compensation for services actually rendered to date, upon any considerations of the future course of the litigation. No’ doubt, upon assessment of damages for breach of contract, the tribunal which disposes of the question will deduct from the amount awarded to the attorney, should he be held entitled to recover, the sum already paid him as retainer, and now to be paid as a condition for order of substitution.

It seems that, for all services to date, $500 is a fair allowance, of which $250 has been paid. Upon payment of the balance, order of substitution will be made.  