(dissenting):
I dissent. The relations between the appellant arid Mrs. Conlon are defined by the agreement signed by herself and her attorney Marsh, and dated April, 1910. It is true that the appellant did not sign the paper, but he expressly alleges in one of his affidavits that he did in April, 1910, make a con*848tract with, said Eva K. Conlon and James H. Marsh, a copy whereof is hereto annexed and marked ‘ Exhibit A.’ ” This is • the contract above referred to. That' contract recites the retainer by Mrs. Conlon of James H. Marsh as her attorney in certain litigations, and her agreement to pay him the sum of $4,000, and costs, contingently upon a successful issue of one of said- litigations, and twenty-five per cent of the back rents to be' recovered in. an action in ejectment then just begun. This compensation was also necessarily contingent upon success. It was then recited that said Marsh and1 said Conlon desired the “ co-operation ” of relator in conducting and carrying on said litigation to a final termination thereof. ’ Just what was meant by “ co-operation ” is not made clear. He evidently was not to co-operate as attorney of record, for Marsh continued in that capacity. Since no other form of “co-operation” is suggested, it seems clear that the expectation was that he should act as counsel, and that this was the understanding is borne out by the fact that he apparently did act as counsel in certain appeals in this court and the Court of Appeals. If this was his relation to the case, .and it was conceded that he never was attorney of record, I am of the opinion that he never acquired a retaining lien upon papers which came into his hands in order to enable him to act as counsel. He does not claim a statutory lien under the provisions of section 66 of the Code of Civil Procedure, as revised by section 4*75 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), but does claim á common-law lien irrespective of the statute.
I do not understand that counsel as such has ever been held to be entitled to such a lien. There are many cases which protect an attorney’s lien, but that is not what we' have to deal with here. While the distinction between attorneys or solicitors and counsel or barristers is not now recognized in this State as constituting different grades in the profession, the distinction, still exists with regard to the services to be rendered and the relation held towards clients when, as in Mrs. Conlon’s cases, both an attorney and a counsel are retained. One distinction which certainly existed at common law, and which L believe exists to-day, is that an attorney, as such, has a retaining lien *849upon documents belonging to the client which came into his hands, while a counsel, as such, has no lien. It would serve no good purpose to comment upon the cases dealing with attorneys’ liens, for none of these deals with the question of the lien of one who is employed only as counsel. I do not overlook the fact that by the agreement above mentioned Mrs. Con-Ion agreed to pay the necessary expenses of the actions. This does not, I think, alter the aspect of the case, for her agreement to pay the necessary expenses would be no more than the law would, impose upon her in any event. But in the absence of some express agreement that the counsel shall advance the ' expenses, and there is no such agreement here, the advance of expenses is no part of the obligation of a counsel as such. Finally, the bulk of relator’s claim is made up of a counsel fee jiaid to yet another counsel, and a large sum paid or to be paid to a handwriting expert. These are not the ordinary but rather extraordinary disbursements in a lawsuit. When Mrs, Cónlon agreed to pay the “ necessary expenses ” of the action she must, I think, be taken as agreeing merely to pay the ordinary expenses usually attendant upon actions at. law, and not extraordinary expenses such as those now under consideration, especially where both attorney and counsel have agreed for compensation contingent upon success. If it was intended to hold the client for such “ expenses,” her acquiescence should have been obtained before they were incurred. The relator seems to have fully understood this, because as late as January 9, 1911, we find him pressing for the payment of a large sum theretofore advanced, and saying that unless arrangements were made for his reimbursement he would refuse to go further with the case. He proceeds, “and as the case is now virtually about being reached for trial it means that if I continue with the trial I have to pay out of my pocket before the trial begins the sum of $500 to Mr. Palmer and guarantee the fees of the expert whatever they may amount to, and I shall not do. any such thing. I prefer to quit now.” It is not contended that Mrs. Oonlon authorized the expenditures or agreed specifically to pay them. Indeed it is clear that she did not. That, notwithstanding this fact, the relator went on and made *850the expenditures is perhaps to be accounted for by his desire to realize upon his contingent agreement for compensation. At all events, I do not think that it established a claim which can be the basis of a lien in favor of one who was merely counsel in the case, and not the attorney. As to relator’s disbursements for printing, which were doubtless necessary expenses, the substituted attorney' offered to pay them, and the offer was refused. They should not, therefore, be made the foundation of a lien. In my opinion the order appealed from was right and should be affirmed.
Ingraham, P. J., concurred.
Appeal from order denying motion for reargument dismissed, without costs. Matter remitted to Special Term for decision,, as indicated in opinion, with ten dollars costs and disbursements of appeal to appellant. Order to be settled on notice.