In re Farrington

146 A.D. 590, 131 N.Y.S. 312, 1911 N.Y. App. Div. LEXIS 3318

Opinion

Rich, J.:

This appeal is brought by an attorney at law from an order .denying his application for an order determining the amount of his hen upon money in his hands belonging to his client. The petition was denied upon the ground that it was not made to appear that the appellant had preserved the money intact.

An attorney with money in his hands belonging to his client has an absolute right to a summary determination by the court of the existence and amount of his lien (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 475; Matter of King, 168 N. Y. 53), and it is not incumbent upon him to show that he had preserved the money intact; it is enough if he is ready, able and willing to account to the client.

The question as to whether the" appellant has a general as well as a special lien upon the money is. to be determined upon the hearing at Special Term and not by this court in the first instance. The answer admits that the appellant has a lien upon the money, and the only controversy is as to the amount.

The order must be reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term, with directions to proceed to a hearing and determination.

Jenks, P. J., Carr and Woodward, JJ., concurred; Thomas, J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and proceeding remitted to the Special Term, with directions to proceed to a hearing and determination.