In re Fellinni

Greenbaum, J. : The appellant, Jacob Klein, an attorney, appeals from an order entered upon a motion made at Special Term to compel him to pay over to the petitioner the sum of $1,226.26, her alleged share as next of kin in a recovery of damages obtained in an action brought by her husband, as administrator of his infant son, against the American Express Company for the death of the child due to defendant’s negligence. There were two trials. The first trial resulted in a disagreement and the second in a verdict upon which a judgment was entered in the sum of $3,452.52. The attorney had a written contract of retainer with the administrator under which he was entitled to receive .one-half of the recovery in addition to costs and taxable disbursements in the action. The sole beneficiaries were the petitioner and her husband who now are and during the pendency of this action were hving together. It is undisputed that fifty per cent of the recovery was paid to the administrator pursuant to the terms of the contract, with the consent of the respondent. There is no affidavit submitted on the part of the husband on the motion, and no explanation is given as to the husband’s silence in the matter. It also appears that this motion was made about a year after the payment to the administrator. The petitioner does not aver [451] that her husband failed or refused to pay her share or any portion thereof to her, nor is there any claim that her husband is hostile to her. The attorney was retained by the administrator and, indeed, the petitioner disclaims employing him as her attorney. Since there was no relationship of attorney and client between the petitioner -and the attorney, a summary proceeding to compel the attorney to pay is not maintainable. (Matter of Minnesota Phonograph Co., 148 App. Div. 56; affd., 212 N. Y. 574; Matter of Sigmund Contracting Co. v. Montegriffo, 153 App. Div. 374; Matter of Niagara, Lockport & Ontario Power Co., 203 N. Y. 493, 496; Taylor v. Long Island R. R. Co., 38 App. Div. 595; Hess v. Joseph, 7 Robt. [N. Y.] 609; Matter of Schell, 58 Hun, 440.) If the plaintiff has any grievance it seems that the proper procedure would be against the administrator. Under the law and upon the facts the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Clarke, P. J., Laughlin, Dowling and Merrell, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.