Opinion
November 20, 1908.
Herman S. Bachrach, for the appellant.
F. Bell-Fenwick, respondent, in person.
This is an appeal from an order denying a motion made by the plaintiff for a substitution of attorneys. The client has the right without assigning cause to change his attorney, and the only question before the court on this motion was whether the order should be made unconditionally or conditionally upon the plaintiff's paying or securing payment of attorney's fees. ( Matter of Prospect Avenue, 85 Hun, 257; Barkley v. N.Y.C. H.R.R.R. Co., 35 App. Div. 167.)
The action was brought in 1905 to partition real property in which the parties had remainder interests. Nothing has ever been done except to have a guardian ad litem appointed for an infant, and a referee appointed to hear and determine the issues raised by the pleadings. It appears to be undisputed that no further steps can be taken in the action because the whereabouts of the life tenant is unknown, and it is impossible to procure the consent prescribed in section 1533 of the Code of Civil Procedure. The plaintiff desires substitution of attorneys for the purpose of discontinuing the action.
It is difficult to perceive what benefit the services of the attorney have been to the plaintiff. While we do not say that the attorney has been guilty of neglect or misconduct, we do not think that this is a case in which the plaintiff should be burdened with an expensive reference to ascertain what fee, if any, should be paid him. The plaintiff wishes to discontinue a suit which was prematurely brought and which the attorney concedes cannot now be brought to a successful termination. Under these circumstances, we think that justice will be subserved by leaving the attorney to his action to recover whatever he can show his services were worth.
The order is reversed, with ten dollars costs and disbursements, and the motion is granted, without costs.
WOODWARD, JENKS, HOOKER and RICH, JJ., concurred.
Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and motion granted, without costs.