Opinion
June 3, 1968
Order of the Appellate Term, Second Judicial Department, dated November 10, 1967, and order of the Civil Court of the City of New York, Queens County, entered April 3, 1967, reversed, on the law and the facts, and appellant's motion remitted to the Civil Court for a hearing and determination de novo, as hereinafter indicated, with costs in all courts to abide the event. In our opinion, the question whether appellant was in fact retained by plaintiff and, consequently, entitled to a lien upon the proceeds of the settlement pursuant to section 475 Jud. of the Judiciary Law, should not have been summarily determined upon the conflicting affidavits ( Rodin v. Universal Button Co., 18 A.D.2d 813; Freedman v. Kahn, 172 N.Y.S. 98; Matter of Jacobs, 169 Misc. 893, 897). If it will appear upon the hearing that there is an issue as to the propriety of the amount demanded by appellant ($500), and if such issue is reached, that question may also be determined upon the hearing. Beldock, P.J., Christ, Benjamin, Munder and Martuscello, JJ., concur.