Opinion
December 30, 1942.
Proceeding for the determination and enforcement of the lien of an attorney for services rendered in a proceeding in the Kings County Surrogate's Court. The appeal is (a) from an order determining the lien to be the amount of the fee agreed upon between respondent and her client and directing appellant, as ancillary executor of the client, to withdraw from a savings bank the amount so determined and to pay it to the petitioner in discharge of her lien; and (b) from an order discontinuing this proceeding as against the bank with which the funds involved in the proceeding in the Surrogate's Court are on deposit. Orders severally affirmed, with one bill of fifty dollars costs and disbursements, payable out of the estate. The lien involved here is a charging lien, and not a retaining lien (Judiciary Law, § 475; Cons. Laws, ch. 30; Matter of Heinsheimer, 214 N.Y. 361, 364, 365; Matter of Sebring, 238 App. Div. 281, 286), and it is asserted against the deposited fund and not against the bank book of which petitioner has possession. This proceeding was properly instituted under the above section of the Judiciary Law. ( Matter of Eno, 111 Misc. 69, 73; Entenberg v. Goodman, 153 Misc. 205. ) Any question as to the court's jurisdiction over appellant is waived on this appeal, and it is immaterial whether his appearance in Special Term was special or general. If the question were open, it would be held that the appearance was general. Lazansky, P.J., Carswell, Johnston, Adel and Taylor, JJ., concur.