Malkan v. Friedberg

Order, entered on February 7, 1963, unanimously modified, on the law and on the facts and in the exercise of discretion, without costs, to the extent of remanding the proceeding to Special Term to try the issues raised either by the court or a court-employed Special Referee. In this summary proceeding the petitioner seeks an order directing respondent, an attorney, to pay over the proceeds retained resulting from a stock sale. The respondent asserts that a part of the proceeds represents a legal fee and a part represents a half of his interest in certain stocks. It is undisputed that the proceeds of the sale here involved were payable to the respondent as attorney and are presently retained by him in an attorney’s account. Issues are presented as to the relationship of the parties, as well as to the ownership and disposition of the fund. In these circumstances, and in view of the fact that the immediate dispute arose out of the respondent’s claim of having performed legal services, the court may exercise its summary power to determine if the funds are being wrongfully retained. {Matter of Long, 287 N. Y. 449.) Concur- — Botein, P. J., McNally, Stevens, Eager and Steuer, JJ.