In the Matter of the Application of Claire Hillebrandt, Respondent, for an Order Directing Robert Avery, Appellant, an Attorney of the Bar of the State of New York, to Pay over Moneys Collected by him on her Behalf

In the Matter of the Application of Claire Hillebrandt, Respondent, for an Order Directing Robert Avery, Appellant, an Attorney of the Bar of the State of New York, to Pay over Moneys Collected by him on her Behalf. Attorney and client — an attorney at law collecting money under a power of attorney — when he cannot be compelled to pay over the money by an oi’der made in a sum-marry proceeding against him as an officer of the court — the claimants remedy is by action. An attorney at law, who has not for a period of ten years or more been engaged in active practice and has not taken any cases for hire, who has been constituted by a widow entitled to receive Certain moneys from beneficial associations, by a written power of attorney, her true and lawful attorney for her and in her name, place and stead, to collect and receipt for the amount due her from such beneficial associations, who does not appear to have acted as an attorney at law, or in any other capacity than as an agent or attorney in fact in the collection of the money, which was received by him under the power of attorney cannot be compelled to pay over such money to the claimant by an order of the court made in a summary proceeding instituted against such attorney as an officer of the court. In such a case the proper remedy of the claimant is by an action at law. Appeal by Robert Avery from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of February, 1898, directing him to pay to the attorney for the claimant certain moneys which he had collected for her. William Sutphen, for the appellant. Thomas Colston Kinney, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: Application was made on behalf of one Claire Hillebrandt for an order directing Robert Avery (the" appellant), an attorney of this court, to pay over certain moneys collected by him as an attorney at law. The application is based upon an affidavit made by the attorney for the respondent and is based entirely upon information contained in letters from the "United States consul at Biei'ut, Syria, a letter from the respondent, and interviews with the appellant. In reply to that the appellant interposed an affidavit which denies that the money was received by him as an attorney at law, or that any professional relations existed between himself and the respondent. It seems that'the husband of the respondent died, and that at the time of his death he was a member of certain beneñciál associations in the United States from whom his widow was entitled to receive a sum' of money upon his death,; that after the death of the respondent’s husband the respondent forwarded to the appellant a power of attorney, by which the appellant was constituted the respondent’s “ true and lawful attorney for me and in my name, place and stead, to collect and receipt for the amounts due me from the ‘American Legion of Honor ’ and the Knights of Honor,’ beneficial associ-' ations in the United States of which my late husband, Major Hugo Hillebrandt, was a member,” and that, in .pursuance of this power of attorney, the appellant, without legal proceedings, obtained from these associations the sum of $5,000. The appellant further swears that although he had been admitted to practice as an attorney and counselor at law in the courts of this State during the last ten years or more, he has not been engaged in active practice, and has not taken any cases for hire. A. letter was also submitted, written by the appellant to the respondent, apprising her of the death of her husband, and making suggestions as to his claims against these beneficial associations, and in which the appellant offers to fill out the necessary proofs of death, so that when the certificates were received a Mr. Collette, in Washington,, might attend to the collection of the money for the petitioner, as the petitioner’s husband had arranged with Mr. Collette to do, and transfer the same to the petitioner. There is not in this power of attorney, nor in the letter to the petitioner, any statement that the appellant was acting as an attorney at law, or in any other capacity than as an agent or attorney in fact in the collection of this money. The facts stated in this affidavit were . not-questioned, nor is there the slightest evidence to show that the appellant was actually retained as an attorney at law to prosecute any claim for the petitioner, or ever acted for her in any professional capacity. He collected this sum of money for her under a power of attorney authorizing him to - receive it from the persons from whom it .was due, but there is nothing that appears in the relations of these parties to each other to show that this appellant ever occupied any professional relation to -the petitioner, or that the-money which he collected was collected as her attorney at law rather than as her attorney in fact. For these reasons I think the - petitioner has mistaken her remedy. Summary proceedings of this character are not sustained, except upon clear proof that the relation of attorney at law and client existed, and that an attorney at law had received the money or the property of a client while acting in this professional capacity, and had failed to account for it to the client. In this case, upon the facts stated, the petitioner’s proper remedy was an action at law, and not an application of this character. I think, therefore, that the order appealed from should be reversed and the proceedings dismissed, but as the appellant seems to have conceded that he has misappropriated this property of the petitioner, received by him as her agent, and. certainly suggests no excuse for his failure to account for it to her, the reversal is without costs. Van Brunt, P. J., Barrett, Rumsey and McLaughlin, JJ., concurred. Order reversed, without costs.