Mary E. Hinman, Plaintiff, v. John Devlin, Appellant, Impleaded with Others. Horace Graves, Respondent; John Devlin, Plaintiff, v. Mary E. Hinman, Defendant. Horace Graves, Respondent

Mary E. Hinman, Plaintiff, v. John Devlin, Appellant, Impleaded with Others. Horace Graves, Respondent. John Devlin, Plaintiff, v. Mary E. Hinman, Defendant. Horace Graves, Respondent. Substitution of attorney — a hea/ring begun at Special Term, continued at a Trial Term before the same judge — extent of the attorney’s lien. When, in a proceeding for the substitution of an attorney in two pending suits, the judge at Special Term after hearing the motion refers the matter to a referee to take proof and report what sum is due to the attorney sought to be removed and directs the application to stand over for further consideration until the referee shall make his report, it is not improper practice to notice the motion for the confirmation of such report for a Trial Term at which the same judge who held the Special Term is then sitting. Rule 36 of the General Rules of Practice is not applicable under such circumstances. In such, a case the attorney’s lien should be restricted to the papers in his hands in the two cases, and should not embrace the referee’s fees, noi' should it be extended to all the real and personal property of the client involved in the suits in charge of the attorney. Appeal by John Devlin, defendant in the first above-entitled . action and plaintiff in the second above-entitled action, from an order of the Supreme Court, made at the Rings County Special Term and entered in the office of the clerk of the county of Rings on the 17th day of March, 1899, confirming the report of a referee and requiring the appellant to pay to Horace Graves,- his attorney, $5,250 as a condition of allowing him to obtain a substitution of attorneys, and also from an order made at the Rings County Special Term and entered in said clerk’s office on the 27th day of March, 1899, denying’ his motion to vacate or resettle the former order and to set aside the report of the referee. John McCrone, for the appellant. Horace Graves, in his own behalf, as respondent. [MAJORITY — Per Curiam:] Per Curiam: This is a proceeding for the substitution of an attorney for John Devlin in the above-entitled actions. The motion first came up before Mr. Justice Maddox at the Special Term for the hearing of motions, and, after reading the affidavits on both sides, the learned judge made an order referring the matter to a referee to take proof and report with his opinion what sum, if any, was fairly due to Mr. Graves, and directing the application to stand over for further consideration until the coming in of the referee’s report. The motion to confirm the report was subsequently noticed for the Trial Term, where Mr. Justice Maddox was then sitting, instead of being brought on at the Special Term for the hearing of motions. There was no error or impropriety in this course, however, as the application, having been partly heard on affidavits by one judge, could not well be continued before another ■—rule 26 of the General Rules of Practice does not apply under such circumstances — and the objection by the appellant to the procedure cannot be sustained. Upon the merits, the referee must have held that there was an oral agreement between Mr. Graves and Mr. Devlin whereby the prior written contracts of the attorney were abrogated, and the ■client undertook' to pay counsel whatever his services should be reasonably worth. While this conclusion can' be upheld, our estimate of the value of the professional work performed by the respondent, as set forth in the testimony taken on the reference, is somewhat lower than that of the learned referee, and we think he would be fully compensated by the present payment of $2,500. The order of substitution must, therefore, he modified by making $2,500 the sum to be paid by the appellant. The lien which it gives' to the attorney should be restricted to the papers in his hands in the two actions and should not embrace the referee’s fees. We know ■of no authority for extending such a lien- to all the real and personal property of the client involved in the pending lawsuits in ■charge of the attorney," as has been attempted here. The order will be modified also in this respect, and as modified will be affirmed, without costs to either party. The order refusing to vacate the order of substitution is affirmed, without costs. All concurred. Order of substitution modified in accordance with, opinion, and as modified affirmed, without costs. ■ Order denying motion to vacate order affirmed, without' costs.