Stern v. Chase

277 A.D.2d 1040

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1950
• Status: Published

Opinion

In a special proceeding instituted against an attorney by his former clients, the purpose of which was to require the attorney to turn over certain documents belonging to the petitioners, the attorney appeals from so much of an order as directs the payment of the sum of $3,100 out of a fund in the amount of $5,000 which had been deposited by respondents with the Clerk of the County of Queens, out of which fund the attorney was to be paid for his services in an amount to be fixed by the court after the coming in of a report by an official referee, pursuant to an order of the court made the 21st day of December, 1949, in this special proceeding; and from so much of the order as directs retention of the balance of the fund pending further order of the court. Order modified by striking therefrom the second ordering paragraph. As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to appellant. Substantial rights were fixed in the order of December 21, 1949, which included provision to the effect that no payments were to be made out of the fund until confirmation of the referee’s report. No motion with respect to the report has been made. Accordingly) the provisions of the order under review which direct the payment of money out of the fund purport to impair the rights of the appellant, which were fixed as above mentioned. In addition, the relief of directing the payment of money was not sought in the moving papers. The relief sought was a direction to the appellant to move with respect to the referee’s report and the only direction sought with respect to payment of money was one which would be applicable only in the event that the appellant failed to comply with the direction to move with respect to the report, assuming such direction would be made. Thus, the appellant, in opposing the motion, had a right to expect that he would, at the worst, be given an opportunity to make such motion before any direction with respect to payment would become applicable. Carswell, Acting P. J., Johnston, Adel, Wenzel and Mac Crate, JJ., concur.