Dunn v. Hudson River Electric Co.

I do not see how any distinction can be drawn between the right of the appellant to resist the substitution of an attorney in his place and his right to a lien on the papers in the action. The present practice seems now well settled that the courts will not enforce a substitution of attorneys where the first attorney is without fault, unless the amount due the attorney for his services and expenditures is either paid or secured. At the same time it is equally well settled that if the attorney has refused, without just cause, to proceed with the prosecution of the case, a client has the right to the substitution of a new attorney in his place (Matter of H., 93 N.Y. 381; Sessions v. Palmeter, 75 Hun, 268; Halbert v. Gibbs, 16 App. Div. 126), and that the old attorney by his voluntary withdrawal forfeits his lien on the papers in the suit. (White v. Harlow, 5 Gray, 463;Morgan v. Roberts, 38 Ill. 67). Two rules, one to the effect that the withdrawal of an attorney authorizes his client to substitute a new attorney, and the other, that despite such withdrawal and substitution *Page 406 the attorney has a lien on the papers in the suit, would seem entirely inconsistent. In Matter of H. (supra) this court said of an attorney: "In other words, he discharged himself, and in such a case it is clear that an attorney cannot leave his client in the middle of a matter, because he does not supply him with money, or by reason of any other difficulty, without running the risk of losing the benefit of that relation. * * * The client's own interest was at stake in the proceedings in question, and, upon the refusal of M. to act as his attorney, he could deal with the case as he chose." (p. 384.) As it is the relation of attorney and client that gives the attorney a lien on the papers in the suit, it would seem that, if, under the decision cited, the attorney loses the benefit of that relation he, necessarily, loses his lien. Nor is there any force in the suggestion that the new attorney may get copies of the papers from the attorney for the opposite party. Why should he be compelled to resort to that attorney and why should that attorney be compelled to give him the information. It is plain that without the pleadings and the other papers in the suit, some of which might be papers of which the opposite attorney was ignorant, the client might be greatly hampered if not defeated in the successful prosecution or defense of his suit. Therefore, the order of the Appellate Division should be either reversed or affirmed in entirety.

Mr. Brackett declined to proceed in the action because of unpleasant relations between himself and the receivers. I think this was an insufficient ground. The relation between client and attorney is, of course, confidential, and it may be that the assignment by the client of the cause of action to another party would justify a withdrawal from further procedure in the action by the attorney, though, personally, I do not believe that such is the law. In Avery v. Jacobs (15 N.Y. Supp. 564) it was held that the death of the client terminated the relation *Page 407 with the attorney and that the latter was not obliged to continue further in the action. That, however, was an action against the estate for previous services and did not involve the right of the personal representatives of the deceased client to a substitution of attorneys and possession of the papers in the action. But all this has no application to the present case. The client of the attorney was a corporation. The receivers appointed were common-law receivers and the title to the property of the corporation was not changed. (Keeney v. Home Ins. Co.,71 N.Y. 396.) The personal relations between the attorney and the receivers were unpleasant, but the receivers were appointed by the intervention of the law and not through the voluntary act of the client. Mere personal feeling if not accompanied with overt act can be no justification for the attorney's abandonment where the corporation is a client, for these very receivers might have been elected by the corporation as its officers. Surely, a change of the officers of a corporation would not entitle an attorney to withdraw from the prosecution of a suit and still retain his lien and right to remain as attorney of record. It may be said that, on the other hand, the respondent showed no very marked disposition to act fairly with the appellant. Therefore, while I feel constrained to vote for the affirmance of the order of the Appellate Division, the affirmance should be without costs.

The ground on which the attorney's relation to his client ceases upon the death of the latter is because death revokes all agencies. On the death of the client notices and papers in the suit can no longer be served upon the attorney by his adversary. Of course, that was not the case here. We have, within a few weeks, refused to dismiss the appeal of a corporation at the instance of the adverse party who claimed that, the corporation having gone into bankruptcy and the trustee in bankruptcy having refused to prosecute the appeal, the corporation had no longer the *Page 408 right to maintain it. We held that the bankruptcy of the corporation did not kill it. A change in the identity of the client might justify the attorney in refusing to proceed with the suit. But here under the authorities there has been no change in the client. The court should not speculate on the chances of its property being restored to the corporation, or the reverse. At least, in this case we have no facts to speculate upon. As I have already said, there is no personal equation in the relation between the attorney and client where the client is a corporation. It is said that the attorney takes the chances of the stockholders electing different officers of the corporation who might be unfriendly to him, but not of the appointment of such persons to control the corporation by order of the court. But why? Unfortunately, receiverships of a corporation are quite common occurrences, and how would intercourse with one of the respondents be less unpleasant had he been elected president of the defendant instead of being appointed its receiver? But to look beyond the case now before us, let us see the effect of the doctrine about to be declared. Railroad companies are the most numerous and extensive litigants in our courts and receiverships are not their uncommon fate. Under this decision upon the appointment of a receiver every attorney having one of the company's suits in charge may insist upon abandoning its prosecution and on being at once paid for his services or otherwise retaining all the client's papers, without the possession of which it would often be impossible and always difficult to successfully prosecute or defend the action. Yet the receivership may be vacated a week later.

HAIGHT, VANN and COLLIN, JJ., concur with HISCOCK, J.; WILLARD BARTLETT and CHASE, JJ., concur with CULLEN, Ch. J.

Ordered accordingly. *Page 409