Opinion
July 1, 1974
In an action to recover damages for an assault, plaintiff's former attorney appeals from so much of an order of the Supreme Court, Queens County, dated September 26, 1973 and made on plaintiff's motion, as, after directing that said attorney is substituted by plaintiff's present attorney, fixed the lien of said outgoing attorney in the sum of $500. Order affirmed insofar as appealed from, with costs. No opinion. Gulotta, P.J., Shapiro, Christ and Benjamin, JJ., concur; Martuscello, J., dissents and votes to reverse the order insofar as appealed from and to remand the matter for a hearing to determine the reasonable value of appellant's services, with the following memorandum: After a hearing at which it was determined that appellant was not discharged for cause, Special Term fixed $500 as the amount of appellant's special lien, payable if there shall be a recovery. The hearing was held solely to determine whether appellant's discharge was for cause and, accordingly, evidence was received only with respect to that issue, neither appellant nor respondent offering evidence concerning the specific nature and extent of appellant's services. Hence, in the absence of a hearing preceded by sufficient notice of the issues to be determined, and in the absence of an evidentiary basis upon which Special Term could have determined the reasonable value of appellant's services, the order at bar may not be affirmed, notwithstanding appellant's erroneous concession that this court has the power to evaluate his services upon the inadequate record before it (cf. Jordan v. Freeman, 40 A.D.2d 656).