Frances M. Sciolaro, Appellant, v. Joseph J. Asch and National Steam and Operating Company, Defendants. John C. Robinson, Respondent

Frances M. Sciolaro, Appellant, v. Joseph J. Asch and National Steam and Operating Company, Defendants. John C. Robinson, Respondent. First Department, April 15, 1910. Husband and wife — husband cannot bind wife by contract with attorney-attorney and client—amount of lien where fee not set by' retainer — agreement between attorneys to divide fee. A husband as such has no authority to bind his wife by a promise to pay an attorney acting for her a certain percentage of the recovery. Under such circumstances where the wife’s attorney consents to a substitution of attorneys provided his lien be preserved, and there is no express contract as to .his compensation, his lien extends only to the reasonable value of his services to the date of substitution. It seems, that an agreement by a client to give an attorney a percentage of the recovery and in addition to reimburse him out of the sum recovered for advances made by him to prosecute the action, is unenforcible. But such agreement made between an attorney'at law and another attorney substituted to prosecute the action is valid, where the client does not participate therein, and entitles the promisee to a lien upon the sum received by the other attorney. Appeal by the plaintiff, Frances M. Sciolaro, from an order of the Supreme .Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 18th day of March, 1910, fixing the amount of the respondent’s lien for professional services rendered herein. Herbert J. Hindes, for the appellant. John G. Jobvnson, respondent, in person. [MAJORITY — Per Curiam:] Per Curiam: . This appeal involves a contest between two attorneys over the division of a contingent fee. So far as appears the'plaintiff lias no interest in the controversy. The respondent was the original attorney for the plaintiff. " He had no agreement with her as to his fee, but claims to have had an agreement with her husband that he should receive fifty per cent of the recovery. This, of course, was not binding upon the. plaintiff. After the action had been begun and partially prepared for trial, plaintiff desired to substitute her present attorney, now virtually the appellant, as her attorney, and respondent signed a consent to substitution which provided that “ the lien of the present attorney [respondent] be preserved.” As respondent had no binding contract with plaintiff as to his compensation, the only lien preserved was that for the reasonable value of his services to date.; As a part of the agreement for substitution, and in consideration thereof, the appellant, the substituted attorney, wrote to his predecessor: “ I agree to pay you as your fee in said action, from moneys received by me for the plaintiff, 25^ of the same. You are to render your services,in the action in conjunction with me, to advance to the. plaintiff one-half of whatever expenses, is necessary to prosecute whatever appeals may be necessary, and to advance one-half of whatever other expenses shall be necessary, which said expenses are to be returned to you, out of any sum that may be recovered in the action.” If this agreement had been made between the plaintiff and the respondent, we should find difficulty in holding that the respondent could take anything under it. It provided not only for a contingent fee, but for the advance money to carry on the litigations, to be repaid, not out of the fee, but by the client out of her share of the recovery. (Code Civ. Proc. § 74; revised into Penal Law, § 274; Coughlin v. N. Y. C. & H. R. R. R. Co., 71 N. Y. 443, 453; Stedwell v. Hartmann, 74 App. Div. 126.) The agreement, however, does not purport to be that of plaintiff, nor to be- binding upon her, and no authority from her is shown to make such an agreement. It may be treated, therefore, solely as the personal agreement by the substituted attorney to divide with his predecessor, for such services as he might be called upon to render, the compensation which the promisor might receive. Such an agreement is expressly authorized by statute. As the respondent’s right to receive any part of the compensation rests, not upon a claim against plaintiff, but upon his contract with the substituted attorney, the order must be so modified as to provide that the respondent’s compensation is to be a charge upon and be paid out of so much of the recovery as the substituted attorney is entitled to. How much that may be does not appear from the papers before us. The order will be modified accordingly and as modified affirmed. Present — Ingraham, P. J., Latjgi-ilin, Clarke, Scott and Miller, JJ. Order modified as directed in opinion, and as modified .affirmed, without costs. Settle order on notice. Sic.