(dissenting). The order about to be reversed directs Harry H. Goebel and Jacob Goebel, attorneys, summarily to pay over to the respondent, as committee of the property of the incompetent herein, the sum of $3,300.
After the institution of this proceeding to adjudicate Edwin J. Long to be an incompetent, and on the 22d day of January, 1940, a written agreement, retaining appellants to represent Long in defense of the proceeding and agreeing to pay them a fee of $5,000, was purportedly executed by Long. . Pursuant to that *462instrument the appellants received $2,500. This amount was paid in installments extending beyond the time that the learned Special Term justice had stated that he would make and enter an order finding Long presumptively incompetent. Such order was entered on February 19, 1940. The appellants received the further sum of $800 on February 26, 1940, in accordance with a second alleged retainer agreement executed, not by the incompetent, but by one Ragno, the incompetent’s chauffeur, under a claimed power of attorney. Long was adjudicated an incompetent by order entered on the 6th day of April, 1940, pursuant to the verdict of a jury.
The motion resulting in the order now before us was predicated on the grounds that the moneys were taken at a time when Long was hopelessly and palpably incompetent, and in furtherance of a conspiracy entered into between appellants and Ragno; that the $5,000 retainer agreement was void, not only because of Long’s obvious incapacity, but because it was, in fact, a forgery, since Long was physically unable to sign his name at the time; and that the second agreement was void because the power of attorney under which it was executed, even if good when made in 1936, was revoked by the manifest insanity of Long.
The Special Term justice who presided at the trial of the incompetency proceeding and heard all the testimony and had the benefit of personal observation of the incompetent, granted the motion on the ground that at the time the moneys were received Long was, in fact, patently insane and to the knowledge of the appellants. It is unnecessary to review the proof adduced at the hearing, which clearly supports that conclusion, as the sole contention of the appellants here is that the court was without power to make the summary order. In passing, however, brief reference may be made to the report of the special guardian appointed on January 23, 1940, or the day after the alleged making of the first retainer, and whose attempt to interview the incompetent was delayed by appellants until January 30, 1940. His report is to the effect that, at that time, he asked Long a variety of questions inclusive of his name, street he lived on, how long he had lived there, if he knew Judge Brower, and how long he had known Judge Brower. To all of these questions the incompetent’s answer was “ Yes.”
The Special Term justice found, on competent sworn testimony, that at the time the incompetency proceeding was instituted, Long had become a mere “ block of wood ” and was “ utterly devoid of comprehension and understanding ” and “ his condition was clearly apparent to anyone coming in contact with him.” His conclusion was that appellants did not act in good faith, that they were not justified, upon reasonable grounds, in attempting *463a defense to the proceedings, much less in taking money from him in the belief that he was competent and capable of transacting his business, and that the opposition was conducted for the benefit of Ragno, if not for themselves.
The direction to repay the moneys taken under the circumstances disclosed by the record in this case was clearly a proper exercise of the power of the court, incident to its summary jurisdiction over its officers. The court acted on the theory that an officer of the court is bound to do no wrong and must act with unquestioned fidelity as well to the court as to his client. In these respects but not beyond them, the power of the court is to be exercised in a summary manner, according to its discretion and judgment. (Matter of Knapp, 85 N. Y. 284, 292.) Attorneys “ are -under the government of the several courts in regard to their behavior to their clients,” writes Chancellor Walworth in Merritt v. Lambert (10 Paige, 352, 356). The parties stand on unequal ground and, generally, principles of public policy require care and vigilance on the part of the courts. (DeRose v. Fay, 3 Edw. Ch. 369; Starr v. Vanderheyden, 9 Johns. 253.)
If the dictum of McLaughlin, J., in Matter of Minnesota Phonograph Co. (148 App. Div. 56; affd. on opinion below, 212 N. Y. 574) and reiterated in Matter of Bailey v. Rutherford (242 id. 220, 223, 224) is to be construed as stating that the summary jurisdiction of the court is restricted to directing an attorney to pay over money received for a client, it is erroneous. Although that is the usual ground upon which summary jurisdiction is invoked, it is by no means the only one. The court will act where moneys have been illegally or wrongfully received from a client (Forstman v. Schulting, 108 N. Y. 110; Matter of Bucken v. Busch, 203 App. Div. 717; DeRose v. Fay, supra), as well as for other reasons, where misconduct is presented. (Matter of Robertson v. Clocke, 18 App. Div. 363; Merritt v. Lambert, supra; Starr v. Vanderheyden, supra.) Indeed, Allen, J., states in Foster v. Townshend (68 N. Y. 203, 205) that “ for any act inconsistent with bis [appellant’s] relation to the court as one of its attorneys and counselors, and suitors have sustained damage, the remedy, as well as the punishment, must be by summary proceedings, and not by formal action * * (Emphasis mine.)
It is, of course, the wrongful behavior or misconduct of the lawyer which is the sine qua non of summary jurisdiction. Where no such element is presented and a dispute arises between attorney and client as to the value of the former’s services after the client has made a voluntary payment, the latter will be remitted to his civil remedy. (Matter of Rosenberg, 263 N. Y. 357; Matter of *464Jeffries, 219 id. 573; Matter of Hess, 133 App. Div. 654. Cf. Matter of Bucken v. Busch, supra.) The distinction between such authority and the present case is that one who takes money from a patent lunatic under the guise of a retainer agreement is guilty of misbehavior and the transaction cannot be deemed a voluntary payment. Such money, the attorney “ is in duty bound to turn over to such client.” (Matter of Rosenberg, supra, p. 361.)
My further opinion is that the right to compel refund in a summary proceeding is unaffected by the fact that the money was taken prior to the formal and final adjudication of incompetency. Lunacy of the client is presented as an issue for determination in a summary proceeding as well as any other issue constituting misconduct. (Matter of Cartier v. Spooner, 118 App. Div. 342; DeRose v. Fay, supra.) It is immaterial that, upon election, the committee may have redress by civil action, and that, possibly, before the incompetent himself might recover in such an action, it would be necessary to declare the retainers void. The remedy resulting from the recognition of the relationship of debtor and creditor is not, necessarily, effectual. All judgments are not paid. In any event, the power of the court in a summary proceeding “ is quite distinct from any legal rights or remedies of the parties, and cannot, therefore, be affected by anything which affects the strict legal rights of the parties.” (Matter of Grey, L. R. [1892] 2 Q. B. D. 440, 443.) Such power will be exercised by the court to avert the consequences of wrongdoing and in vindication of its own dignity. (See Matter of Papa v. Rini, 171 App. Div. 796, and cases cited; affd., 219 N. Y. 575.) In Matter of Knapp (supra) Judge Danforth quotes approvingly from the opinion of Marshall, Ch. J., in Ex. parte Burr (9 Wheat. 531) that such power is “ necessary for the preservation of decorum, and for the respectability of the profession.”
The rights and duties of the appellants, upon the institution of this proceeding, were clear. When they undertook the defense, they were charged not only with knowledge of the obvious mental condition of the alleged incompetent, but with the nature of the proceeding. If successful in their defense, their remedy was no different from that in any other matter in which they might render professional services. If unsuccessful, their right to demand payment from the committee of the estate, subsequently appointed, and to enforce payment by action, if necessary, cannot be questioned; or, at their election, it was their right to make application in the proceeding to the justice presiding for an allowance from the estate, which application might be granted summarily and in a suitable amount, depending upon the justification for, and merits of, the defense, and the nature and extent of the services rendered. *465Under no circumstances, however, may a lawyer be justified in taking from one who is in fact insane money or property under the guise of a so-called retainer agreement to enter a defense to a proceeding brought against him for the purpose of having him judicially declared incompetent to manage and care for his property and estate, and the pendency of such a proceeding may not be deemed a justification for such conduct.
For the foregoing reasons, my opinion is that the order should be affirmed. The observation by Huger, Ch. J., in Forstman v. Schulting (supra, p. 113) is applicable here: “It would be a reproach to the law if the court, knowing that one of its officers had money in his hands which had been erroneously taken from a party to the action, could not compel such officer to restore them to the rightful owner.”
Adel, J., concurs with Hagarty, J.
Order reversed on the law, without costs, and motion denied, without costs.