Opinion
April 24, 1967
Order of the Supreme Court, Kings County, dated July 5, 1966, determining the lien of an outgoing attorney on a percentage basis, reversed, on the law, without costs, and matter remitted to the Special Term for further proceedings consistent herewith. The findings of fact of the Special Referee as to the value of the outgoing attorney's services have not been considered. We are in accord with the determination of the learned Special Referee that this is not a dispute between attorney and client, but is in fact between the incoming and outgoing attorneys, despite the fact that the plaintiffs are nominal parties to the appeals. Such being the case, the outgoing attorney should be required to elect, either to have his lien determined on the basis of a presently-fixed dollar amount, quantum meruit, or, still on the basis of quantum meruit, to take a contingent percentage instead, to be determined at the conclusion of the case (cf. Podbielski v. Conrad, 286 App. Div. 1040; Carpino v. Aversano, 5 A.D.2d 1009; Reubenbaum v. B. H. Express, 6 A.D.2d 47, 48, 49). Brennan, Acting P.J., Hopkins, Benjamin, Munder and Nolan, JJ., concur.