Emile Beneville, Respondent, against John Whalen, as Receiver of The Friendship Boat Club, Appellant

Emile Beneville, Respondent, against John Whalen, as Receiver of The Friendship Boat Club, Appellant. Decided May 18th, 1888.) In an action to recover for professional services, it appeared that such services were rendered by plaintiff as an attorney at law in defending an action brought against the president of a voluntary association by certain alleged illegally expelled members for reinstatement, the dissolution of such association, and the appointment of a receiver; that a temporary injunction was granted in such action, restraining the defendant therein from transacting any business; that defendant herein was appointed receiver in such action. Held, that the injunction did not restrain the employment of counsel, and that plaintiff was entitled to compensation for his services up to the time of the appointment of a receiver, as a matter of right; but that compensation for services rendered thereafter was in the discretion of the court appointing the receiver. The judgment record in such action is prima facie evidence of the employment of the attorney for the defendant therein, and it is not necessary to prove a resolution' of the club retaining him to defend. Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a hew trial. The action was brought against Whalen, as receiver of The Friendship Boat Club, to recover compensation for professional services rendered by plaintiff in defending an action brought against Michael J. Murray, as president of such club, by one Philip S. Biglin and others, who alleged that they had been illegally expelled from membership therein, for reinstatement, the appointment of a receiver, and the dissolution of the club; in which action defendant was appointed receiver. Further facts are stated in the opinion. Charles Blandy, for appellant. Emile Beneville, respondent, in person. [MAJORITY — J. F. Daly, J. —] J. F. Daly, J. — In the action in which the defendant was appointed receiver (viz.: Biglin v. Murray, as President of the Friendship Boat Club, a Voluntary Association), the association was enjoined from transacting any business by the order to show cause, but it was nevertheless quité proper for the club and its president to take measures for its protection in that action and to employ attorney and counsel. The court which granted the order to show cause certainly did not intend that the injunction contained in it should operate to prevent the defendant therein from seeking legal assistance in making response to such order. There was therefore no violation of the mandate of the court in retaining this plaintiff to advise and defend the association. But the appellant is right in his contention that the association has no power to pledge the funds or property subsequently committed by the court to the custody of its receiver, to the expense of legal proceedings had after the appointment of such receiver. The attorney and counsel retained by the club may maintain an action for services rendered up to the time of the appointment, but not after-wards; his compensation for services subsequent to the appointment resting in the discretion of the court appointing the receiver (Barnes v. Newcomb, 89 N. Y. 108). The recovery in this action was for $275, upon evidence of all the services rendered by respondent before and after the receiver was appointed. It was error to allow a recovery as matter of right to that extent; and although no objection was made on the trial to the evidence offered, and the point is taken for the first time on appeal, we ought, as a motion for a new trial was made, to entertain the objection and order a new trial (Maier v. Homan, 4 Daly 168). In view of certain exceptions to rulings upon the trial it is proper to say that in our opinion the judgment record was prima facie evidence of the employment of the attorney for the defendant therein, but not conclusive, and that it was not necessary for him to prove a resolution of the club retaining him to defend. The judgment should he reversed and a new trial ordered, with costs to abide event. Abler and Bookstaver, JJ., concurred. Judgment reversed and new trial ordered, with costs to abide event.