The Anglo-Continental Chemical Works, Limited, Respondent, v. James St. George Dillon and George Maclagan, as Executor, etc., of James Hartford, Deceased, Defendants. Archibald C. Shenstone, Appellant

The Anglo-Continental Chemical Works, Limited, Respondent, v. James St. George Dillon and George Maclagan, as Executor, etc., of James Hartford, Deceased, Defendants. Archibald C. Shenstone, Appellant. First Department, March 9, 1906. Attorney and client—substitution of attorneys — attorney retaining , lien on papers until payment. Although a client has an absolute right to substitute attorneys, an attorney not guilty of misconduct should be allowed to retain his client’s papers on such substitution until the amount due -him is ascertained by reference and is paid. Appeal by Archibald C. Shenstone 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 14th day of Hovember, 1905, granting a substitution of attorneys and directing the surrender of the papers in the action without terms. Archibald C. Shenstone, appellant, in person. Edmund L. Mooney, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The appellant has been the attorney of record in this action for thp defendant Maclagan since the commencement of the action. The order here appealed from was granted upon the. motion of the defendant Maclagan, the granting of the order evidently being based upon the absolute "right of a party to change his attorney, as no misconduct on the part of the appellant or cause for the substitution is shown. That a party has the absolute right to change his attorney is without question in this State. Under rule 10 of the General Buies of Practice, however, the rights of the attorney should be protected where no misconduct is shown, and this requires that when an attorney has rendered services and has received no compensation therefor, a substitution should not be granted without protecting his lien. The application of the rule requires, in the present case, that a reference should be ordered to determine the amount due the attorney, the latter to be allowed to retain the papers until the amount due him is determined and paid; that part of.the order, however, which directs substitution to stand.' The order appealed fr,om should be modified accordingly, and- as so modified affirmed, with ten dollars costs and disbursements to the appellant. Present — O’Brien, P. J., Patterson, Ingraham, Laughl'in and Olarke, JJ. Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to the appellant. Settle ' order on notice.