In re Proving the Last Will & Testament of Lesster

149 A.D. 938, 134 N.Y.S. 401

Opinion

Per Curiam:

The question whether the appellant had been guilty of such misconduct as to justify an unconditional substitution of attorneys should not have been determined on conflicting affidavits. Pending the determination of that question the appellant’s rights should in some manner be protected. We think he will be fully protected by an order preserving his lien on the respondent’s interest in the estate in controversy. The order -should be modified so as to direct the referee to take proof as to the charges against the appellant and so as to provide for a substitution of attorneys and the surrender of papers on condition that the appellant retain a lien for the value of his services on the respondent’s interest in said estate and on any property or sum of money agreed to be transferred or paid to the respondent in settlement of the will contest, subject, however, to the determination of the question whether said lien has been forfeited for misconduct, and as thus modified the order should be affirmed, with ten dollars costs and disbursements to the appellant. Present — Ingraham, P. J., Laughlin, Clarke, Scott and Miller, JJ. Order modified, as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Order to be settled on notice.