Opinion
January 19, 1942.
Present — Lazansky, P.J., Johnston, Adel, Taylor and Close, JJ. Settle order on two days' notice.
Order confirming referee's report modified on the law and the facts by striking out the second, third, fourth and fifth ordering paragraphs, and substituting therefor the following: "Ordered that within thirty days after receipt of a copy of this order with notice of entry thereof, Meyer D. Siegel pay to the moving parties the following sums: (a) $3,094.36, the amount found due from said Meyer D. Siegel to said moving parties, with interest thereon from July 10, 1940; and (b) $439.50, disbursements expended by said moving parties for their share of the referee's fees and stenographer's charges, making a total of $3,533.86, with interest on $3,094.36 from July 10, 1940." As thus modified, the order is unanimously affirmed, with costs to appellant Siegel. The other items from which appeals were taken were disposed of by the Special Term and are disposed of by the determination made herein. The appeals in that connection, therefore, are dismissed, without costs. The account between the parties is stated as follows:
Credits to appellant Siegel: Amount of judgment .............................. $37,569 47 Interest on judgment as agreed .................. 450 00 Actual disbursements made ....................... 820 37 Paid to moving parties out of collections ....... 13,163 00 ___________ Total credits ............................... $52,002 84 =========== Charges against appellant Siegel: Collections by settlement of original judgment .... $29,039 00 Collection by execution ........................... 168 00 Collection in second action ....................... 3,790 00 __________ $32,997 00 Received from moving parties in escrow ....................... 20,000 00 Amount of prospective disbursements included in judgment ..... 850 20 Unauthorized payments to sheriff ............................. 250 00 To be applied on account of the judgment out of the $2,000 received on July 23, 1936 .................................. 1,000 00 ___________ Total charges ............................................ $55,097 20 Deduct total credits ........................................... 52,002 84 ___________ Appellant Siegel should turn over to respondents ......... $3,094 36 =========== The testimony in this case warranted the referee's finding that Mr. Siegel was not entitled to any fee for the services rendered to the moving parties, other than the $1,000 which he has received. The Special Term had no authority to reduce the amount of the judgments obtained. If there were any error, it was judicial and not clerical. The court finds no real justification in fact for the statement of the Special Term that "there were other sums paid by defendants to plaintiffs' attorney, which he failed to credit upon the judgment," and by innuendo that the conduct of Mr. Siegel was improper. The conclusion was reached owing to a mistake, partly induced by the confusion or forgetfulness of Mr. Siegel on the original hearing before the Special Term. He was asked with respect of six checks aggregating $875 when, as a matter of fact, those checks had been accounted for by deduction from the damages awarded by the trial court presided over by the late Mr. Justice Cropsey, and were not a proper part of Mr. Siegel's account involved herein.