In re Berger

263 A.D. 730, 30 N.Y.S.2d 858, 1941 N.Y. App. Div. LEXIS 4742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1941
• Status: Published

Opinion

Order of the Surrogate’s Court, Kings County, granting the motion of the administratrix for substitution of attorneys, modified on the law by striking from the last paragraph the words, “ and the quantum of the award to be made to him be fixed at an appropriate future time,” and the matter is remitted to the Surrogate’s Court to take proof of the value of appellant’s services as of the time of his discharge by substitution and to fix the amount of the lien therefor, and for the making of a new order in accordance therewith, with ten dollars costs and disbursements to appellant, payable out of the estate. The appellant is not entitled to compensation at the rate set forth in the agreement of retainer, nor is he bound thereby. He is entitled to be compensated quantum meruit for services rendered, and to a lien therefor to be fixed as of the time of the substitution. (Matter of Tillman, 259 N. Y. 133; Matter of Krooks, 257 id. 329.) The attorney is entitled to payment of the amount of his lien, so fixed, before he may be required to turn over the papers. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.