#### William Goldstein, an Infant, by Israel Goldstein, His Guardian ad Litem, Respondent, *v.*The Nassau Electric Railway Company, Appellant.

Second Department,

May 16, 1913.

Attorney and client — settlement by client without knowledge of attorney—when attorney not entitled to appointment of referee to fix compensation.

An attorney for an infant who, becoming of ago after the commencement of an action for personal injuries, settled with the defendant and executed a release without the knowledge or consent of 'his attorney, should not be granted an order for the appointment of a referee to fix his compensation, where his moving papers fail to show any agreement between him and his client for compensation, or that the settlement was in fraud of his rights, or that his client is not able and willing to pay proper charges.

Appeal by the defendant, The Nassau Electric Railway Company, 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 1st day of March, 1913, granting the plaintiff’s motion for the appointment of a referee to fix the compensation of plaintiff’s attorney.

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      *D. A. Marsh [George D. Yeomans*with him on the brief], for the appellant.

*Jacob W. Hartman [Herman Strizver*with him on the brief], for the respondent.

Rich, J.:

This action was brought by an infant by his guardian *ad litem*to recover for personal injuries alleged to have been sustained in consequence of defendant’s negligence. The infant became of age while the action was pending and thereafter settled with the defendant and executed and delivered a release from further liability. The settlement was had without the knowledge or consent of plaintiff’s attorney, and he thereupon moved for an order appointing a referee to take testimony for the purpose of fixing his compensation. The motion was granted at Special Term, and the proceeding sent to an official referee to take proof and report.

It is contended in support of the order that under the provisions of section 475 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), which was formerly section 66 of the Code of Civil Procedure (as amd. by Laws of 1899, chap. 61), the lien of an attorney upon his client’s cause of action may be determined and enforced in a proceeding commenced by the petition of the attorney.

There is no allegation in the moving papers of any agreement between the attorney and his client as to compensation, and it must, therefore, be assumed that the attorney’s right to compensation rests upon *quantum meruit.*Conceding without determining the contention of the learned attorney that he has a lien upon his client’s cause of action which may be enforced in this proceeding, I think the order was improperly made. Judge O’Brien said in *Poole*v. *Belcha*(131 N. Y. 203): “ In order to warrant the court in disregarding a settlement and release made in an action, it must be shown that to give full effect to them will operate as a fraud upon the attorney, or at least to his prejudice by depriving him of his costs or turning him over to an irresponsible client. ”

The provision of the statute for the protection of an attorney does not prevent parties from settling their differences. If, *228however, the release given on such a settlement has the effect of defrauding the attorney of his fees, it will be ignored and the court will protect the attorney’s lien. There is nothing shown in the case before us to warrant the belief that the attorney needs any protection. It is not shown that his client is not able and willing to pay his reasonable and proper charges, and in such circumstances he should be left to his action to enforce any claim he may have. We cannot assume that the settlement was in fraud of his rights, and until this is shown the protection of the statute cannot be invoked. *(Smith*v. *Acker Process Co.,*102 App. Div. 170.)

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, without prejudice to renew if the respondent is so advised.

Jenks, P. J., Burr and Thomas, JJ., concurred; Carr, J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to renew if the respondent is so advised.