Laughlin, J.:
The order denying the motion for reargument is not appeal-able, and the appeal therefrom is, therefore, dismissed, but without costs.
The purpose of this action was to procure the cancellation of a deed, and the record thereof, to the premises known as 121 Worth street, in the city of New York, executed by the husband of the defendant Oonlon to her, on the ground that it was a forgery. She appeared in the action by Marsh & Bennett, but the date of their appearance for her is not given. It appears, however, that the action was pending in the month of April, 1910, for an agreement in writing, recited to have been made on the blank day of April of that year, was executed by the defendant Oonlon and by Marsh, one of the firm of her attorneys, who, it was recited, had been retained as her attorney to defend the action, “and to conduct such other proceedings in connection therewith as he. may deem necessary or advisable to protect her and to secure to her her rights and title in' and to” the premises, and delivered to the appellant, whereby the appellant was retained “ to co-operáte ” with said Marsh “to a final termination” in the defense of this action, and in the prosecution of an action then pending, which had been brought by the defendant Oonlon against the plaintiff for ejectment with respect to the same premises, and to recover rent therefor, and in making a motion in another action entitled Jones v. Kelly, which it was deemed might have some effect on the defendant Oonlon’s rights in the preinises. The agreement recites that the defendant Oonlon had theretofore agreed to pay said Marsh the sum of $4,000 and the [844] costs of the action, in the event that the deed to her of the premises should be finally' sustained, and twenty-five per cent of any back rents recovered in the ejectment action, together with the costs thereof. The agreement also recites that Marsh agrees to assign and does thereby assign to the appellant, of the $4,000 which he was to receive under the agreement, the sum of $3,000, and of the twenty-five per cent of the rents collected twenty per cent thereof and one-half of said costs. The defendant Conlon therein agreed to make payments of the said $4,000 and twenty-five per cent of the rents collected or received in settlement of said litigations, and the' costs, to the appellant and said Marsh in said proportions, and “to pay all necessary expenses of said actions and proceedings.” The appellant did not sign this agreement,' but according to his, affidavit it was negotiated at the instance of the defendant Conlon, who applied to and retained him personally, and that, as he did not desire to oust said Marsh as attorney of record, the'agreement was made aiid he has acted under it ever since in the conduct of the litigations to which it refers, apparently performing duties of both attorney and counsel, and this would seem to be borne out by the records on the various appeals to this court therein. It is not controverted that the appellant appeared for the defendant Conlon and with her knowledge and consent in said litigations; but it is contended that he refused to accept said agreement, and that his appearance was merely in the capacity of counsel under a retainer from said Marsh. It is conceded that the appellant, in the course of his employment in connection with said litigations, incurred various disbursements, and he has been paid on account thereof by the defendant Conlon the sum of about $2,200, and that in the course of said employment there came into his custody and possession certain -papers, in addition to the pleadings in this action, relating to this action, consisting of exhibits and other papers and documents which, by the order from which the appeal has been taken, he has been directed to turn over to her present attorney of record, and a stay of proceedings thereunder having been denied we were informed on the argument that the order has been complied with.
On the 9th day of June, 1911, an order was entered on cón[845] sent of the defendant Oonlon and said Marsh & Bennett substituting Jay Noble Emley as attorney of record for the defendant Oonlon. The moving papers show that at the time of this substitution Marsh agreed to deliver all the papers in the action to said Emley, but that this was not done and that said papers were in the possession of the appellant, who refused to deliver them. An affidavit of the defendant Oonlon, constituting one of the moving "papers, states that she has paid the appellant “in full for all disbursements which he has made in this action with her knowledge,” and that he had refused to prosecute 'an appeal from the judgment rendered against her in this action unless he was secured or paid the sum of “ about Five thousand dollars,” and that he stated that he did not wish to represent her on said appeal. The appellant, in his affidavit read in opposition to the motion, denies that he refused to represent her on the appeal, or that he demanded security for his services, and denies that she has paid him in full for' his disbursements incurred by her authority; and it is further stated therein that only $500 of the $2,200 paid has been on account of this litigation, and that' this payment was on account of a charge of $900 for services of a handwriting expert employed by him with her knowledge, whose services were used for her benefit in the action, and $81.82 for disbursements necessarily incurred by said expert. The appellant, in a letter annexed to his affidavit, shows that he claims to be obligated to said expert for the balance of said bill, but such liability on his part is not satisfactorily shown. Another item of disbursements alleged to have been incurred by the appellant in this action is $500 paid to one Palmer as counsel for assisting in the trial of the action, of whose employment the defendant Oonlon was notified in advance. It may be inferred that she made no objection to such employment, but whether the circumstances were such that she was justified in accepting Palmer’s services as part of the services which were to be rendered by appellant or as additional services for which she was to pay has not been clearly shown. The appellant also claims a further balance due and owing to him from the defendant Oonlon, on account of disbursements in this action, and in other litigations incurred by her authority in the sum of about $275.
[846] The court granted the motion, and filed a memorandum opinion showing that it was granted upon the ground that the appellant was merely employed as counsel and had no lien upon the papers, and without passing upon the question as to whether the disbursements for which a lien is claimed or any part of them were necessarily incurred, or incurred by her authority. .
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Laughlin, J.:
The order denying the motion for reargument is not appeal-able, and the appeal therefrom is, therefore, dismissed, but without costs.
The purpose of this action was to procure the cancellation of a deed, and the record thereof, to the premises known as 121 Worth street, in the city of New York, executed by the husband of the defendant Oonlon to her, on the ground that it was a forgery. She appeared in the action by Marsh & Bennett, but the date of their appearance for her is not given. It appears, however, that the action was pending in the month of April, 1910, for an agreement in writing, recited to have been made on the blank day of April of that year, was executed by the defendant Oonlon and by Marsh, one of the firm of her attorneys, who, it was recited, had been retained as her attorney to defend the action, “and to conduct such other proceedings in connection therewith as he. may deem necessary or advisable to protect her and to secure to her her rights and title in' and to” the premises, and delivered to the appellant, whereby the appellant was retained “ to co-operáte ” with said Marsh “to a final termination” in the defense of this action, and in the prosecution of an action then pending, which had been brought by the defendant Oonlon against the plaintiff for ejectment with respect to the same premises, and to recover rent therefor, and in making a motion in another action entitled Jones v. Kelly, which it was deemed might have some effect on the defendant Oonlon’s rights in the preinises. The agreement recites that the defendant Oonlon had theretofore agreed to pay said Marsh the sum of $4,000 and the [844] costs of the action, in the event that the deed to her of the premises should be finally' sustained, and twenty-five per cent of any back rents recovered in the ejectment action, together with the costs thereof. The agreement also recites that Marsh agrees to assign and does thereby assign to the appellant, of the $4,000 which he was to receive under the agreement, the sum of $3,000, and of the twenty-five per cent of the rents collected twenty per cent thereof and one-half of said costs. The defendant Conlon therein agreed to make payments of the said $4,000 and twenty-five per cent of the rents collected or received in settlement of said litigations, and the' costs, to the appellant and said Marsh in said proportions, and “to pay all necessary expenses of said actions and proceedings.” The appellant did not sign this agreement,' but according to his, affidavit it was negotiated at the instance of the defendant Conlon, who applied to and retained him personally, and that, as he did not desire to oust said Marsh as attorney of record, the'agreement was made aiid he has acted under it ever since in the conduct of the litigations to which it refers, apparently performing duties of both attorney and counsel, and this would seem to be borne out by the records on the various appeals to this court therein. It is not controverted that the appellant appeared for the defendant Conlon and with her knowledge and consent in said litigations; but it is contended that he refused to accept said agreement, and that his appearance was merely in the capacity of counsel under a retainer from said Marsh. It is conceded that the appellant, in the course of his employment in connection with said litigations, incurred various disbursements, and he has been paid on account thereof by the defendant Conlon the sum of about $2,200, and that in the course of said employment there came into his custody and possession certain -papers, in addition to the pleadings in this action, relating to this action, consisting of exhibits and other papers and documents which, by the order from which the appeal has been taken, he has been directed to turn over to her present attorney of record, and a stay of proceedings thereunder having been denied we were informed on the argument that the order has been complied with.
On the 9th day of June, 1911, an order was entered on cón[845] sent of the defendant Oonlon and said Marsh & Bennett substituting Jay Noble Emley as attorney of record for the defendant Oonlon. The moving papers show that at the time of this substitution Marsh agreed to deliver all the papers in the action to said Emley, but that this was not done and that said papers were in the possession of the appellant, who refused to deliver them. An affidavit of the defendant Oonlon, constituting one of the moving "papers, states that she has paid the appellant “in full for all disbursements which he has made in this action with her knowledge,” and that he had refused to prosecute 'an appeal from the judgment rendered against her in this action unless he was secured or paid the sum of “ about Five thousand dollars,” and that he stated that he did not wish to represent her on said appeal. The appellant, in his affidavit read in opposition to the motion, denies that he refused to represent her on the appeal, or that he demanded security for his services, and denies that she has paid him in full for' his disbursements incurred by her authority; and it is further stated therein that only $500 of the $2,200 paid has been on account of this litigation, and that' this payment was on account of a charge of $900 for services of a handwriting expert employed by him with her knowledge, whose services were used for her benefit in the action, and $81.82 for disbursements necessarily incurred by said expert. The appellant, in a letter annexed to his affidavit, shows that he claims to be obligated to said expert for the balance of said bill, but such liability on his part is not satisfactorily shown. Another item of disbursements alleged to have been incurred by the appellant in this action is $500 paid to one Palmer as counsel for assisting in the trial of the action, of whose employment the defendant Oonlon was notified in advance. It may be inferred that she made no objection to such employment, but whether the circumstances were such that she was justified in accepting Palmer’s services as part of the services which were to be rendered by appellant or as additional services for which she was to pay has not been clearly shown. The appellant also claims a further balance due and owing to him from the defendant Oonlon, on account of disbursements in this action, and in other litigations incurred by her authority in the sum of about $275.
[846] The court granted the motion, and filed a memorandum opinion showing that it was granted upon the ground that the appellant was merely employed as counsel and had no lien upon the papers, and without passing upon the question as to whether the disbursements for which a lien is claimed or any part of them were necessarily incurred, or incurred by her authority. .
We are of opinion that the court erred in deciding that the ' appellant had no lien on the papers in his possession. Although the appellant was not the attorney of record,'he virtually had charge of the case with the knowledge and consent of the defendant Conlon, in effect as such. Not being attorney of record, however, he had no statutory or charging lien by virtue of the provisions of section 66 of the Code of Civil Procedure, as revised by section 475 of the Judiciary Law (Consol,. Laws, chap. 30; Laws of 1909, chap. 35); but he does not claim a charging 'or statutory lien, nor does he even make any claim, for services. He merely insists that he is entitled to be reimbursed for the disbursements necessarily incurred, or incurred by authority of the defendant Conlon before he can be deprived of the custody and possession of the papers, including the exhibits in the action. If there were no action pending, ;t is perfectly well settled "that he Would have a lien, regardless of the statute, upon any papers which lawfully came into his possession by her authority for any services rendered to his client, of which he' could not be deprived without payment or security for payment for his services.. (Matter of H-, an Attorney, 87 N. Y. 521; Bowling Green Savings Bank v. Todd, 52 id. 489; Ward v. Craig, 87 id. 550, 560.) It has not been adjudged here that the appellant has been guilty of any breach of his obligation to the client by which he has forfeited his lien.
The learned counsel for the respondent attempts to sustain the order upon the theory that the appellant was not employed as an attorney, but only as counsel in the action, and that as such he has no lien. If, as contended by the appellant, the entire charge and control of the case was turned over to him without a formal substitution, he has good ground for contending that" he was in fact employed as attorney, although he did not become attorney of record; but we do not deem it necessary [847] to place our decision on this.ground, for we think that the line of demarcation with respect to services rendered as counsel and as attorney, although it .is recognized for certain purposes (Easton v. Smith, 1 E. D. Smith, 318), is not such in this jurisdiction as to deprive a member of the bar who renders services both as attorney and counsel in an action, at the instance or with the knowledge and consent of the client, which appears to be the case here, in which he is not the attorney of record, of a hen upon papers of the client lawfully coming into his hands for use in the conduct of the litigation. As already indicated, the court‘at Special Term did not pass upon the liability of tho defendant Conlon for the disbursements claimed by the appellant or determine that he had been guilty of any breach of his obligation to his client by which he forfeited his right to a lien (Matter of Rieser, 137 App. Div. 177), but decided the motion upon the theory that not being the attorney of record he had no lien.
We are, therefore, of the opinion that the matter should .be remitted to the Special Term, to be decided on the merits on such further proof by affidavit as either party may present, or by reference, as the court may deem necessary, and that at the same time an application for restitution may be made, and if it shall be determined that the appellant has incurred any disbursements for which the defendant Conlon is liable, that the papers be ordered returned to him and that he be adjudged to be entitled to retain the possession thereof until the amount for which the defendant Conlon is liable, as determined by the ■court, shall be paid, or until security therefor shall be given, with ten dollars costs and disbursements of the appeal to appellant.
Clarke and Miller, JJ., concurred; Ingraham, P. J., and Scott, J., dissented.