The heirs of one Rosanna Carleton seek in this proceeding to compel John F. Dorthy of Rochester, an attorney and counselor of the Supreme Court of the state of New York to pay to them $2,059.40, paid him by the referee herein November 21st, 1892, as attorney for Rosanna Carleton who at that time had departed this life.
This action was brought to partition the real estate of one Robert Brown, deceased.
This proceeding to compel the attorney to pay over was begun May 18th, 1895, and later referred to Charles B. Wheeler, of Buffalo, who reported December 12th, 1895, that the lien of John F. Dorthy on the fund of $2,059.40 was $150, and that he should pay over the balance of $1,909.40, with interest thereon from December 1st, 1892, together with $198.95, costs of the proceeding.
On December 22d 1895, the Special Term confirmed the report and ordered John F. Dorthy to pay over the money within twenty-four hours after service of a copy of the order upon him, and failing he was to be deemed in contempt of court. *Page 568
On the 18th of April, 1896, the Appellate Division in the fourth department affirmed this order, and appeal is now taken to this court.
The first point relied upon here is the allegation that the referee has found various facts that are unsupported by evidence.
We have read with care the voluminous evidence taken by the referee, and are of opinion that it supports his findings and opinion as reported to the court. It is not necessary to comment on the numerous details involved, as it is purely a question of fact on conflicting evidence, the great weight of which is in favor of the findings and, therefore, not properly submitted to this court.
Counsel for Mr. Dorthy suggests that the heirs of Rosanna Carleton are not parties to this action; that the relation of attorney and client does not exist between Dorthy and the heirs of Rosanna Carleton; that the order as made ought not to have directed payment of money in Dorthy's hands to the present attorney for the heirs and other technical suggestions.
These are points that cannot avail Mr. Dorthy in view of the disposition we propose to make of this case.
We do not wish to be understood as intimating that there is any defect in the proofs of this action as to who are the heirs of Rosanna Carleton, or that there is any doubt as to the right of Mr. George Clinton to represent these heirs, but as the proofs and appearances are not before us, we have concluded to modify the order appealed from by directing John F. Dorthy to pay the moneys in his hands, as set forth in said order, into court within twenty-four hours after service upon him of a copy of the order as modified, exclusive of Sunday.
The order to stand in all other respects.
The order appealed from should be affirmed, as modified, with costs.
All concur.
Order affirmed. *Page 569