Taking the refusal to charge as requested and the charge as given, the jury were instructed that it was not necessary .to render defendant liable to the plaintiff for the money collected by him, that he should have been retained by her, or that he should have recognized her as his client, provided the money in fact belonged to her, and she had given notice to that effect to him before he paid over the money to his client; in other words, it was *8not essential that the relation of attorney and client should subsist between the parties; the plaintiff was entitled to the money if it belonged to her, and the defendant had notice of her title thereto before the payment by him to John H. Sims.
It follows from these propositions that an attorney is liable to a third person for moneys collected by him for his client, if the claimant gives notice of his claim before the attorney pays it over.
I infer from the opinion of the judge at special term, upon granting a new trial, that he was of the opinion that an attorney stood in a somewhat different relation to his client in reference to moneys collected by him from that occupied by other agents — that he would not be allowed to dispute the claim of the client when other agents would be allowed to do so. I do not find any case in which that principle has been decided. Indeed, in all the eases to which we have been referred, the liability of an attorney is held to be the same as that of other agents, unless there was some element in the case of the attorney taking it out of the general rule.
In Marvin v. Ellwood, 11 Paige, 365, the question was whether an attorney who had collected money for his client could file a bill of interpleader against the client, and the third person claiming the fund, and the chancellor held he could not.
It does not follow that because an attorney cannot interplead his client, that he is not liable over to him in an action at law for the moneys collected by him. If an attorney has notice that a third person claims money collected by him for a client before it is paid over, he is liable to the claimant, if he pays it over to the client after such notice, and such was the view of the chancellor in the case cited. The attorney might protect himself by demanding security of the claimant or client, and pay to either upon receiving indemnity. Langley v. Warner, 1 Sandf. 209; Matter of Bleakley, 5 Paige, 311.
The general rule, doubtless, is that ah agent cannot dispute the title of his principal to property intrusted to him by the latter. ■But that principle does not apply to a case where a claim is made by a third person to the property. In such case the agent must interplead the principal and claimant if he can, or he must demand indemnity, and deliver to the party who indemnifies him. He is not compelled to yield to the claim of the principal without an effort to protect himself against the claims of third persons. And if he has delivered the property to his principal without notice of *9the claims of others thereto, he is protected against such claims to the extent of the delivery.
The evidence as to whether the defendant was retained by the plaintiff was conflicting, and the jury has found in favor of the plaintiff upon it, if it can be said to have been a question on the trial. The court put the case to the jury upon the assumption that the relation between the parties was that of principal and agent.
E the defendant was liable in that character, the verdict was right. But if the liability of an attorney to his client is less onerous than of an agent to his principal, he had the right to have the jury decide whether the relation of attorney and client existed, and the refusal to charge as requested on that subject was erroneous. I am of the opinion that there is no difference in the nature or extent of the liability whether the defendant is to be considered an attorney or a mere agent.
The order granting a new trial must be reversed and the motion therefore denied.
Order reversed.