Adams v. Torrey

Townley, J. A motion was made to substitute counsel in the case of Adams v. Torrey. The former counsel, Goldsmith, Jackson & Brock, asserted a lien. To defeat the lien it was claimed that these counsel had been general counsel of T. & G. Assets Realization Corp.; that they had been paid $3,000 for their services; that on December 2, 1940, a statement of account was sent with the request that they be paid a large additional sum; that a dispute arose as to how much was due; that conferences were held until March 10, 1941, when the counsel wrote to the corporation that since the parties could not come to an agreement as to the amount to be paid there was no alternative but to commence an action. The letter continued that counsel would withdraw immediately as attorneys for the company. It was then said: “ You will undoubtedly further recall that in the case brought by Adams (MacJannet) against Thomas & Griffith and T. & G. Assets Realization Corp. we have been acting as attorneys for the defendants and the services rendered in this action were specifically excluded from the bill which we rendered to the company so that some arrangements should be made concerning the defense of that action.” Thereafter the retiring attorneys brought an action in the Supreme Court for $20,000, less $3,000 admittedly paid. The answer claimed that $3,000 was all that was due. It is undenied that after the action was brought, however, and until the motion herein was made to substitute attorneys on May 19, 1941, the former attorneys continued to represent their client in this Adams v. Torrey case. The most to be said of the attorneys’ letter is that they were willing to withdraw from the case if the client desired it. The claim of the former client on this appeal apparently is that counsel cannot represent a client in one case and at the same time sue that client for other unrelated work. Of course, situations of this sort depend upon their facts. The suit herein was based on a bill which did not include the services in the Adams action, and it was so understood. In Commercial Telegram Co. v. Smith (57 Hun, 176) it was claimed that an attorney who attempted to enforce a lien could not succeed because he had instituted suit to recover for services rendered. The court said: “ And if that suit had included the claim now made by the plaintiff, that would have furnished a very satisfactory reason for dismissing this application; for the attorney could then very well be held to have elected to prosecute his remedy by action instead of by means of this summary proceeding. But the statement made by him is that [8] the claims presented for determination in that suit are exclusive of that forming the basis of this proceeding; that this was reserved by him and not made a part of the demands for the recovery of which that suit was commenced and is now being prosecuted.” So it was held that the lien was not lost. The only way this Hen could have been lost was by voluntarily withdrawing from the case. Such withdrawal was clearly not made. The very motion to substitute counsel estabHsb.es that. The order, so far as appealed from, should be affirmed, with twenty dollars costs and disbursements. O’Malley and Coen, JJ., concur; Martin, P. J., and Dore, J., dissent.