In re Fincke

Joseph F. Daly, J. The only question raised on this appeal, pursuant 'to the stipulation, viz., as to the power of the court to make the order of reference, involves the inquiry: 1st, As to the jurisdiction of the court to entertain this application for summary relief ; and 2d, As to the practice. The late case of The Bowling Green Savings Bank v. Todd (52 N. Y. 489), settles in this State all question as to the power of the court to compel, in a summary manner, the payment by an attorney to his client, of moneys collected by the former for the latter. The view taken by the learned judge at special term, who made the order appealed from, and set forth in hi® opinion, is thus confirmed by the authority and reasoning of the-highest tribunal in the State, and makes it unnecessary for u® to examine the case of Pascal (10 Wallace, 491), since the Court of Appeals, reviewing that authority, reaffirms the doctrine which has always prevailed in our courts, that a client may compel payment of moneys collected for him by his attorney, by motion, and shall not be remitted to his action at law, even where the attorney in good faith claims a lien upon the fund for his services (3 Sandf. 696 ; 4 Hill, 564, 565 ; 6 Paige, 182 ; 5 Id. 311; 10 Paige, 352 ; 8 Abb. Pr. 357; 14 Abb. Pr. N. S. 249). As to the reference to ascertain the truth of the matter® alleged in the petition and the extent of the attorney’s lien, it was strictly in accordance with the practice established by many precedents (3 Sandf. 696; 8 Abb. 357; 15 Abb. Pr. N. S. 86, 93 ; 3 Caines, 221; 36 Barb. 662), and affords the only satisfae [117] lory mode of ascertaining the facts upon which the order of the ■court is to be based. The order appealed from should be affirmed, with costs. Loew and Larremobe, JJ., concurred. Ordered accordingly.