#### In the Matter of the Application of Maria D. Hitchings, Appellant, to Compel William F. Wyckoff and Others, Copartners and Attorneys at Law, etc., Formerly Doing Business under the Firm Name and Style of Wyckoff, Clarke & Frost, Respondents, to Pay over Certain Moneys.

Second Department,

June 6, 1913.

Attorney and. client — summary jurisdiction of court — attorney not acting in professional capacity — failure to return moneys received for investment — bankruptcy of attorney.

The granting of a summary order to compel an attorney at law to pay over money to a client is within the discretion of the court; it is not a matter of absolute legal right.

Where an attorney receives money, not in his professional capacity, but as business agent of another, such summary order for repayment cannot issue.

Where an attorney received moneys to invest in bond and mortgage and has gone into bankruptcy, so that he is unable to repay, the court will not issue such summary order.

Nor are his law partners who had nothing to do with such investment subject to such summary jurisdiction, but the plaintiff will be left to his action.

Appeal by the petitioner, Maria D. Hitchings, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of April, 1913.

*Walter E. Warner [Harry W. Kouwenhoven*with him on the brief], for the appellant.

*Edgar Jackson*and *Frederic E. Mygatt,*for the respondents.

Per Curiam :

This is an appeal from an order made at Special Term in Kings county, denying a motion made by the petitioner for a summary order to compel certain attorneys, who composed the firm of Wyckoff, Clarke & Frost, to pay over to the petitioner certain moneys. The motion was denied in the discretion of *393the court and without prejudice to the right of petitioner to bring an action.

In an application like this, the granting of the relief sought is within the discretion of the court, and it is not a matter of absolute legal right. *(Matter of Schell,*128 N. Y. 07.) Where the moneys sought to be collected were received by an attorney, not in his professional capacity, but as a business agent of the person who paid them over to him, then an order cannot issue summarily against him for the repayment of the moneys in question. *(Matter of Langslow,*167 N. Y. 314.) The moneys in question were given originally by the petitioner to William F. Wyckoff, who was an attorney at law, but who at the same time was engaged in large and frequent real estate operations. They were given to him for investment on bond and mortgage at his discretion and judgment. They were invested originally in one bond and mortgage, which was subsequently paid off, and then again in another bond and mortgage, which was likewise paid off. The moneys in payment of the second bond and mortgage were received by the firm of Wyckoff, Clarke & Frost, and by it turned over to Mr. Wyckoff in his individual capacity. He has met with considerable misfortune, and has been obliged to go into bankruptcy. This application was made to compel him and his copartners to pay over these moneys to the petitioner under pain of imprisonment for contempt. So far as Wyckoff is concerned, it seems to us that the discretion of the court was exercised properly enough, as it appears that he is in bankruptcy, and has no funds to meet the requirement of a summary order. The only effect of such order would be to set in motion an imprisonment of Wyckoff, and there is no reasonable suggestion that in any of his dealings with the petitioner he was guilty of fraud or professional impropriety. As to the other respondents, the proof is that while they were copartners with Wyckoff, yet each of them had his own line of business, making investments for his individual clients, and that none of them had anything to do with investments for the personal clients of the other partners, or in holding any moneys, except those given to each of them individually for such purpose. It may very well be that all three partners may be liable to this petitioner in an appropriate action, but we think this is *394not a case for a summary order against either Clarke or Frost, under the circumstances set forth in the record. The facts of this case distinguish it from that of *Matter of Day*(156 App. Div. &64).

The order should he affirmed, without costs.

Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Order affirmed, without costs.