In the Matter of the Application of Margaret A. Mahar, Respondent, to Compel Payment by Her Attorney of Moneys Received by Him as Such Attorney for Herself as Administratrix, etc., of Mary A. Mahar, Deceased. Edgar T. Chapman, Jr., Appellant

In the Matter of the Application of Margaret A. Mahar, Respondent, to Compel Payment by Her Attorney of Moneys Received by Him as Such Attorney for Herself as Administratrix, etc., of Mary A. Mahar, Deceased. Edgar T. Chapman, Jr., Appellant. Third Department, March 10, 1909. Attorney and client—refusal to turn over client’s money — giving ■ of worthless check to administratrix — parties entitled to compel payment. Where the attorney for an administratrix upon the same day that he received §1,000 insurance money, which was part of the estate, gave his check for §400 payable to her order as administratrix, which check was never paid, and upon the judicial settlement of the accounts of the administratrix- in which was included an item of a payment to him for services in obtaining letters of administration the attorney asked for no allowance,.he has no lien on the §400 for services rendered, and the administratrix is entitled to an order requiring him to pay the same to her. Where at the time of the giving of the check for §400 the attorney agreed that - the balance of the insurance" money should he paid for the benefit of J., one of the next of kin, and in the account of the administratrix the amount of said balance was included as having been paid to J. as bis share of the estate, though in fact it had been paid to said attorney, who was also acting as attorney-for J., for whose benefit a part thereof was expended by said attorney, the administratrix cannot recover the money remaining in the attorney’s hands, and upon' which he claims a lien, and is not entitled to an order directing payment to her. Appeal by Edgar T. Chapman, Jr., from an order of the Supreme Court, made at the Bensselaer Special Term and entered in the office of the cleric of the county of Bensselaer on the 15th day of April, 1908. The order appealed from confirms the report of a referee, and directs the appellant to pay over to the petitioner certain moneys in his hands which she claims he received while acting as her attorney. The petitioner was the administratrix of her mother, and one of her next of kin. The appellant was employed as her attorney, and procured the issuance to her of letters of administration upon her mother’s estate, and continued to act in that capacity up to and including the final settlement of the estate in the Surrogate’s Court. Immediately after the appointment of the petitioner as administratrix she paid the appellant $100 for the purpose of covering necessary expenses connected with the estate. Out of that sum the appellant disbursed $16.50, leaving the remainder in his hands, except a small amount paid for car fares. Among the personal property belonging to the deceased was a policy of insurance for $1,000. A draft for this amount was placed in the hands of the appellant, and he received the moneys thereon. On the sanie day he gave back to the petitioner his check for $400, payable to her order, as administratrix, and agreed that the sum of $600 should be paid for the benefit of James H. Mahar, one of the next of kin. She testified that she told the appellant that she wished this amount to be paid to two designated creditors of James. The appellant, however, did not pay any part of it to them, but instead thereof he paid various amounts to or for his benefit, aggregating $382.57, leaving' a balance in his hands out of such $600 of the sum of $217.43. The appellant testified that such $382.57 was paid out to various persons at various times, and was so paid out with the consent and approval of James and his sister Margaret, the petitioner, and this testimony is not denied. The appellant now claims a lien upon all the moneys remaining in his hands. The check for $400, which he gave to the petitioner, was presented for payment to the bank on which it was drawn and payment thereof refused, and. it still remains unpaid. Many of the services rendered by the appellant, and for which compensation is claimed in this proceeding, were subsequent to the non-payment of the check. Further facts are stated in the opinion. Peter A. Delaney, for the appellant. Frederick E. Draper, Jr., for the respondent, [MAJORITY — Per Curiam :] Per Curiam : The determination of this appeal requires the application of different principles with-reference to the $400 than those which should properly apply to the' $217.43. With reference to the $400, wé agree with the learned referee that the same is not properly chargeable with a lien in favor of the appellant. He not only had received $100 from her on account of expenses of administration, but he failed to pay the check for $400 which he had given her. It is true that he -rendered some services to her as administratrix after the check was dishonored. After that he prepared her accounts as administratrix, and presented them to the Surrogate’s - Court for settlement. In those accounts lie included the $100 as moneys paid to him for “ services for appointment of administratrix.” He made no claim at that time against her for other services, and asked for no allowance to him for services upon the accounting,, and the testimony shows that he promised to pay her the amount he owed her. Even if the appellant was equitably entitled to be paid more for the services which he- rendered to the petitioner as administratrix than he has received the account prepared by him as her' attorney ■ has put.it beyond her power, after the final settlement, to be reimbursed for any moneys she might now be required to pay to him. His time for the adjustment of any claim he had for services other than those included on the accounting was on the accounting itself, and he should hot now be heard to say he has a lien upon this $400 for any services rendered under the circumstances appearing here; We. conclude, therefore, that the order, so far as it covers that amount and interest thereon, is Correct. We think,-however, that the referee was in error in reporting that the appellant should be required to pay over to the petitioner the $217.43 and the interest thereon. The $600 above mentioned. .was included in the petitioner’s accounts as administratrix, as having been paid over to James II. Mahar as his share as one of the next of bin. The amount was in fact paid over to the appellant, who was' acting ás his attorney. The latter has expended for his. benéfifc all but $217.43 thereof, and claims a lien on that amount for his services to him. These moneys do not belong to the petitioner, and under the proof she has no trust relations or obligations concerning them and she' cannot recover them in this proceeding as moneys belonging to her for the simple reason that they do not belong to her but do belong to James subject to any lien that his attorney may have upon them, the amount of which cannot be determined in this proceeding. The order should be modified by deducting the sum of $217.43 and interest from the amount required to be paid. This will leave it so that if the appellant has a valid claim against these moneys as the property of James for services rendered to him it may be enforced; and if, on the other hand, they are not properly chargeable with a lien for such services, James may recover them in a proper preceding for that purpose. The order should be modified accordingly, and as so modified affirmed, without costs to either party. All concurred, Kellogg, J., in result. Order modified by deducting the sum of $217.43 and interest, from the amount required to be paid, and as so modified unanimously affirmed, without costs to either party.