Opinion
March 3, 1969
In a negligence action to recover damages for personal injuries, plaintiff's former attorneys appeal from an order of the Supreme Court, Queens County, dated December 15, 1967, which denied their application for a fee. Order reversed, on the law, without costs, and application remanded to said court for further proceedings not inconsistent herewith. The findings of fact below are not affirmed. The issue of appellants' right to compensation was decided largely upon affidavits. The issue should be resolved only after a hearing in which sworn testimony and other evidence is received, subject to cross-examination ( Matter of Weitling, 266 N.Y. 184; Matter of Long, 287 N.Y. 449). Appellants' right to compensation revolves around questions of judgment in prosecuting the action. This is clearly distinguishable from Automatic Bedding Corp. v. Ortner ( 26 A.D.2d 664) where the discharged attorneys' undisclosed conflict of interest was apparent upon the papers. Hopkins, Acting P.J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.