#### Magdalena Scheu, Appellant, *v.*Jacob Blum, as Administrator, etc., of Nicholaus Blum, Deceased, Defendant. David Bernstein, Appellant’s Old Attorney of Record, Respondent.

First Department,

March 6, 1908.

Attorney and client— substitution of attorneys — determination of lien — when reference unnecessary.

Where, after reversal of a judgment for the plaintiff, she agrees on substituting attorneys, that the former attorney’s fees be determined by the court and made a lien upon any subsequent recovery, to which the former attorney consents and both parties submit'the. question, the court may make an order determining the amount.

A judge who presided at the trial in which such services were rendered may determine the amount without a ref erence as. the matters are within his personal knowledge.

Attorney’s compensation reduced from §1,000 to §500..

Appeal by the plaintiff, Magdalena Scheu, from so much of an order of the Supreme Court, made at the Dew York Special Term and entered in the office of the clerk of the county of Dew York on the 5th day of February, 1908, granting the plaintiff’s motion for a substitution of attorneys as imposes conditions and fixes the value of the services of her former attorney.

*Elias B. Goodman*of counsel *[Pace c& Stimpson,*attorneys], for the appellant. .

*David*Bernstein, respondent, in person.

Per' Curiam :

Upon the trial of this action the plaintiff recovered a verdict, upon which a judgment was entered, for the sum of $3,898.97. Upon appeal to this court said judgment was reversed and a new trial-ordered. (119 App. Div. 825.)

Thereafter the plaintiff asked for a substitution of attorneys. In her affidavit she set forth “ that deponent is perfectly willing and will gladly consent that as a condition of the substitution of another than the said David Bernstein as her attorney of record herein, that the said David Bernstein’s fees be fixed and determined by the court *679and be declared- to be a charge and first lien against any recovery she may get against the defendant upon the said second or other trial in this action,” and she, therefore, asked that an order of substitution be made “ conditioned as aforesaid.”

The respondent in his affidavit stated that he had no objection to the substitution, but that it should not be ordered unless he was protected and secured for his fees and disbursements, and asked that the amount thereof be fixed by 'the court and that a lien therefor be declared.

Thereupon, upon this request of both parties, the court made an order fixing the value of the services of the attorney, at $1,000, and ordered “ that the said motion will be granted -upon condition that the plaintiff within five days "after service of á copy of the within order upon Mess. Pace & Stimpson, plaintiff’s attorneys for the purpose of this motion, together with notice of entry, execute and file a stipulation, duly acknowledged, that the attorneys shall have a first lien to the extent of the said sum of $1,000 upon any amount which the plaintiff - may recover or upon the proceeds of any settlement thereof, and out of which said sum the plaintiff’s present attorney of record shall pay the counsel who represented the plaintiff upon the" last trial.” '

Both parties having submitted the question of the value of the attorney’s services to the court it was entirely proper for the court to make an order determining the amount. ■ As the learned judge before whom the matter was pending had presided at the trial in which the services under consideration had been rendered, there was no necessity of a reference to advise the court of the matters that were already within its personal knowledge. It seems to us, however, in view of the amount involved, and the results of the litigation had, that the amount allowed should be reduced to $500.

The order appealed from will, therefore, be modified by reducing the sum fixed from $1,000 to $500, and as so modified affirmed, wdthout costs to either party.

Present — Patterson, P. J., Ingraham, McLaughlin, Clarke and Scott, JJ.

Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.