Kegerreis v. Sirotkin

• Order of March 11, 1946, as resettled by order of July 30, 1946, granting motion for substitution of an attorney, modified on the law and the facts by striking out the last two ordering paragraphs and by substituting in lieu thereof the last ordering paragraph in the original order of March 11, 1946. As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to appellant. Order of August 7, 1946, as resettled by order of September 16, 1946, fixing amount of compensation and disbursements and providing for payment, modified on the law and the facts by striking out the last ordering paragraph, hy reducing the compensation and disbursements of the original attorney from $766.40 to $366.40, and by providing for payment of the reduced amount in accordance with the resettled order made March 11, 1946, as modified. As so modified, the order, insofar as appealed from, is affirmed, without costs. There could be no material change in the order of March 11, 1946, under the guise of resettlement and after the time to appeal therefrom had expired. (Buland V. Tuthill, 187 App. Div. 314, 315.) In any event, we are of opinion that in this negligence action compensation of the original attorney, who had been retained on a contingent basis, should be made payable out of the proceeds of the action. In the light of all the proof, we are of opinion that the allowance was excessive. Hagarty, Acting P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.