Hoffman v. Van Nostrand

14 Abb. Pr. 336

Opinion

Clerke, J.

party in an action has no right to change his attorney without the leave of the court. (Macpherson a. Robinson, 1 Dougl., 217; Fourt a. Daysell, 13 Ves., Jr., 196; Mumford a. Murray, Hopk., 369.) The court undoubtedly will grant this leave at the request of the party; but in doing so it will -consult the rights of the attorney, and will not allow the change until the just claims of the latter are discharged or secured. But it is contended in the present case that the attorney undertook the management of the suit without looking to the plaintiff for his compensation, depending solely upon a proportion of the proceeds in case the plaintiff should succeed. I see no evidence of this. He did indeed promise not to seek compensation personally from Hoffman. But the action was commenced and prosecuted for the benefit of another person, who, with the consent of Hoffman, used his name. This person employed the attorney, and after Hoffman called upon him, expressing his apprehensions that he would be liable for the costs, he wrote to Hoffman, stating that he would not claim the costs personally from him.

But this is no reason why the party who is really interested, and who employed the attorney, should not pay him the costs that he has actually earned for his benefit. The attorney makes no demand personally against Hoffman, but asks the court, before another attorney should be substituted, to require as a condition of such substitution, that his costs shall be paid.

Motion granted, on the payment of the costs which have been earned by the attorney.