William S. Anderson and William L. Dowling, Appellants, v. The New York and Harlem Railroad Company and Others, Defendants, Impleaded with James C. Bushby, Respondent

William S. Anderson and William L. Dowling, Appellants, v. The New York and Harlem Railroad Company and Others, Defendants, Impleaded with James C. Bushby, Respondent. First Department, May 3, 1912. Attorney and client — power of court to compel attorney to aPPly moneys received on account toward payment of costs and disbursements. Where it is expressly agreed between an attorney and his client that a certain sum paid on account shall be applied primarily to the payment of the costs and disbursements of the litigation, and that the surplus, if any, shall be applied on account of services and that the balance of the attorney’s compensation shall be contingent upon ultimate success, and the case is finally decided against the client, with costs, the court may compel the attorney to repay the money received by him or to apply it on account of said costs and disbursements. Appeal by the plaintiffs, William S. Anderson and another, 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 5th day of February, 1912, denying the plaintiffs’ application to compel James C. Bushby to pay back certain moneys to the plaintiffs. H. A. Andrewes, for the appellants. Max D. Steuer, for the respondent. [MAJORITY — Clarke, J.:] Clarke, J.: The plaintiffs were formerly the owners of the premises 1102 and 1106 Park avenue in the borough of Manhattan. This action was brought upon an agreement for the reservation of the damages caused by the' viaduct of the defendant railroad companies in front of said premises. " Plaintiffs retained as their attorneys in said action the firm of Bushby & Berkeley, composed of James C. Bushby and L. M. Berkeley. The action was commenced in April, 1906, by the said firm as attorneys of record. Their compensation under the contract of retainer was contingent upon ultimate success. On April 22, 1907, plaintiffs paid said Berkeley as the representative of said firm of Bushby & Berkeley the sum of $500 on account, it being agreed that the said sum should he applied primarily for the costs and disbursements of the litigation, and that the surplus, if any, should be applied on account of attorneys’ services in said case and that the balance of the attorneys’ compensation should be contingent on ultimate success. Berkeley on April 23, 1907, remitted $75 of the said sum of $500 to said Bushby. Thereafter the case was tried and resulted in a judgment for the plaintiffs. Defendants appealed and the Appellate Division reversed the judgment and ordered a new trial (132 App. Div. 183), on which trial the complaint was dismissed, with $1,295.83 costs against the plaintiffs. This judgment was affirmed by the Appellate Division, with $98.72 more costs, which judgment was affirmed by the Court of Appeals, with $146.59 costs. (136 App. Div. 939; 203 N. Y. 577.) These costs, together with the disbursements for expert witnesses, for stenographer’s minutes, printing and other expenditures, largely exceeded the $500 advanced under the agreement as aforesaid. After the retainer the firm of Bushby & Berkeley was dissolved but they remained as attorneys of record in this case. Berkeley has accounted to the plaintiffs for the $425 retained by him out of the said $500 but Bushby has wholly refused, although requested, to pay back said sum of $75 received by him or to apply it on account of said costs and disbursements. The order appealed from was made upon a motion by the plaintiffs to compel the respondent Bushby to repay said moneys so received by him. The Special Term having denied the motion this appeal is taken. The moneys having been received by the attorneys of record for the specific purpose set forth, and there being no denial of the material facts alleged, we see no reason why the power of the Supreme Court'over its attorneys at law to compel them .to deal fairly, with their clients, should not have been exer,'cised... H there'had .been a'dispute as to material facts the court could have sent the matter to a reference or have taken proof itself. As there was none the motion should have been granted. The order appealed from should he reversed, with ten dollars costs, and disbursements, and the motion- granted, with ten dollars costs. Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.