In re Braunstein

Appellate Division of the Supreme Court of New York

In re Braunstein

250 A.D. 632, 295 N.Y.S. 160, 1937 N.Y. App. Div. LEXIS 8418

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 26, 1937

StatusPublished

Cited by1 cases

This text of 250 A.D. 632 (In re Braunstein) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Braunstein, 250 A.D. 632, 295 N.Y.S. 160, 1937 N.Y. App. Div. LEXIS 8418 (N.Y. Ct. App. 1937).

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Opinion

Per Curiam.

The appeal is from an order denying petitioner’s motion to compel the respondent to pay over certain moneys received in his capacity as an attorney.

This proceeding is not maintainable under section 475 of the Judiciary Law. While the court has inherent power to compel an attorney by summary order to fulfill his obligations to his client, the power will not be exercised where the right of relief depends on disputed questions of fact. (Matter of H ————, an Attorney, 87 N. Y. 521; Matter of Pohs, 243 App. Div. 709.) Here there is an issue of fact as to whether the agreement signed and the payment made by the petitioner resulted from coercion by the respondent or whether the settlement was made voluntarily as the result of negotiation. This issue should not be determined summarily upon affidavits.

The order should be affirmed, with ten dollars costs and disbursements.

Lazansky, P. J., Carswell, Davis, Johnston and Close, JJ., concur.

Order denying motion to compel respondent to pay over certain moneys received in his capacity as an attorney affirmed, with ten dollars costs and disbursements.

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Per Curiam.

The appeal is from an order denying petitioner’s motion to compel the respondent to pay over certain moneys received in his capacity as an attorney.

This proceeding is not maintainable under section 475 of the Judiciary Law. While the court has inherent power to compel an attorney by summary order to fulfill his obligations to his client, the power will not be exercised where the right of relief depends on disputed questions of fact. (Matter of H ————, an Attorney, 87 N. Y. 521; Matter of Pohs, 243 App. Div. 709.) Here there is an issue of fact as to whether the agreement signed and the payment made by the petitioner resulted from coercion by the respondent or whether the settlement was made voluntarily as the result of negotiation. This issue should not be determined summarily upon affidavits.

The order should be affirmed, with ten dollars costs and disbursements.

Lazansky, P. J., Carswell, Davis, Johnston and Close, JJ., concur.

Order denying motion to compel respondent to pay over certain moneys received in his capacity as an attorney affirmed, with ten dollars costs and disbursements.

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Bluebook (online)

250 A.D. 632, 295 N.Y.S. 160, 1937 N.Y. App. Div. LEXIS 8418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-braunstein-nyappdiv-1937.

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