Opinion
February 20, 1962
Appeal from an order of the Supreme Court, Ulster County, on a motion for substitution, fixing the fee of appellant, the outgoing attorney, on a percentage basis plus his actual disbursements and directing that such sums be a lien on any recovery obtained by plaintiffs and ordering appellant to deliver all papers and documents in his possession relevant to the action to the plaintiffs or to the substituted attorney. Appellant contends that he has the right to have his fee fixed on the basis of quantum meruit. We agree. The cases uniformly hold that a discharged attorney, while he may elect to receive his compensation on a contingent basis ( Wojcik v. Miller Bakeries Corp., 2 N.Y.2d 631; Friedman v. Gordon, 260 App. Div. 1023, affd., 285 N.Y. 630), is entitled to have his fee fixed on the basis of quantum meruit should he so choose ( Martucci v. Brooklyn Children's Aid Soc., 284 N.Y. 408; Matter of Tillman, 259 N.Y. 133). We do not believe that the record supports respondents' allegation that appellant was discharged for cause. If such were considered to have been the case by the court below appellant would not have been entitled to any compensation rather than that here awarded ( Crowley v. Wolf, 281 N.Y. 59). Appellant urges that this court fix his fee on the basis of the record before us ( Hunnewell v. Sanger, 5 A.D.2d 765). We do not find, however, that the present record affords us sufficient information to appraise properly the value of the services rendered by appellant to the advancement of the lawsuit or the extent of his disbursements. In addition, we cannot determine on the basis of the record whether plaintiffs' financial status is such that a proper exercise of discretion would dictate that appellant surrender the papers relevant to the lawsuit in his possession and thus be compelled to forego his retaining lien without immediate payment of his fee and/or disbursements or without the posting of security therefor ( Friedman v. Gordon, supra; Brown v. Moffitt, 5 A.D.2d 1002; Hernandez v. Nierenberg, 15 Misc.2d 818). Of course, any amount presently awarded and allowed as a lien on any eventual recovery would be subject to possible reduction, upon application, if such amount should prove disproportionate to the final recovery ( Kaplowitz v. Brooklyn Bus Corp., 242 App. Div. 840; Friedman v. Gordon, supra). Order reversed and case remitted to Special Term for further proceedings not inconsistent herewith, without costs. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.