Opinion
October 6, 1941.
In a proceeding to fix the amount of appellant's lien, as attorney for the petitioner, and to compel him to restore to petitioner certain papers in his possession, order on reargument, entered March 25, 1940, modified on the law by adding to the first ordering paragraph, after the words "the papers mentioned in said original order," the words "with the exception of the bond and mortgage referred to in paragraph numbered `2' thereof." As so modified, the order is affirmed, without costs. Appeal from original order, entered December 19, 1939, dismissed, without costs. We do not deem it necessary to pass on the question whether the appellant waived his retaining lien by obtaining judgment against his client in an action at law for his fees. We hold that it was proper for the court to direct the return to petitioner of documents which were her property, in view of the fact that the attorney had security for the debt in the form of a bond and mortgage, and in the absence of any claim that such security was inadequate. It was error, however, to compel the attorney to surrender the bond and mortgage, which are not the property of the client and upon which the attorney has more than a mere lien. Assuming that the court had jurisdiction to direct the surrender of such security in a summary proceeding, as was indicated in Refractolite Corp. v. Prismo Holding Corp. ( 257 App. Div. 671), the power should be exercised with due regard to the protection of the attorney by substituting some other and adequate form of security. Such protection is not afforded by the provision of the second order which directs the filing of a bond upon certain contingencies which may never occur. Lazansky, P.J., Johnston, Adel, Taylor and Close, JJ., concur.