Opinion
March 24, 1952.
Proceeding by an attorney under section 475 Jud. of the Judiciary Law to have a lien for services determined. He has a written retainer which provides that he is to be paid and is authorized to retain "out of any monies that may come into his hands 40% of all sums received or recovered". In the action, which he brought pursuant to the retainer, judgment was entered awarding his client $17,389.35, out of which $10,977.34 was directed to be paid to four defendants-lienors, leaving a balance of $6,412.01. In another action, the respondent had recovered judgment against the client in the sum of $24,644.70 and by a third-party order has restrained the disposition of the fund of $6,412.01. The client, although apparently served, did not appear or answer in this proceeding, and the contest was between the attorney and the judgment creditor. The matter was referred to an Official Referee to hear and determine. On the hearing before the Official Referee it was stated on the attorney's behalf that he sought to have his lien determined on the retainer and not on a quantum meruit basis. The Official Referee fixed the amount due the attorney at $2,500. He appeals maintaining that he is entitled to 40% of the gross amount, which he figures to be $6,898.94. Order, insofar as appealed from, modified by striking from the ordering paragraph "$2,500.00," and by substituting therefor "$2,564.80," and, as so modified, the order is affirmed, without costs. Despite the fact that appellant did not seek to recover on a quantum meruit basis, the learned Official Referee must have fixed the acount allowed on that basis. There is no proof of fraud or illegality in the inception of the retainer, but an interpretation is required to determine whether the contingent percentage provided for therein should apply on the gross or net recovery. By the terms of the retainer appellant is entitled to 40% of the net amount, $6,412.01, or $2,564.80. Nolan, P.J., Carswell, Adel, Wenzel and Schmidt, JJ., concur.