#### John J. Cooper, Plaintiff, *v.*Amelia Cooper et al., Defendants.

(Supreme Court, New York Special Term,

May, 1899.)

Partition — Compulsory return of excessive allowance — Allowance not the measure of the value of an attorney’s services.

Where the attorney for the plaintiff, in an action of partition, has been erroneously allowed, by the court a sum in excess of the provisions in that behalf of chapter 61 of the Laws of 1898, he may be com- . pelled by a substituted attorney for the plaintiff to return the excess to the referee; but, as the statutory compensation does not measure the value of the attorney’s services, he will, notwithstanding the substitution of attorneys and the consequent loss of lien, be allowed to take an order referring it to the same referee to determine what additional sum, if any, should be paid by the plaintiff out of his distributive share in order to compensate his original attorney fully.

Motion for restitution in an action for the partition of real estate.

Louis Cohen, for plaintiff.

Franklin Bien, for Peter Eagan, referee.

Scott, J.

This is an action for the partition of real estate. By an order callgd a final judgment, entered on September 28, 1898, the report of sale was confirmed, and the referee was directed out of the proceeds of the sale to pay the costs of the parties and certain sums by way of extra allowances. These allowances included the sum of $2,000, to the attorney for the plaintiff, $400 to the attorney for the defendant Magher, and to two guardians *ad*litem, $350 and $375 respectively. On the 1st day of September, 1898, chapter 61 of the Laws of 1898 had gone into effect, whereby in actions for partition, wherein no defense was interposed, allowances to any party are limited to $200. The 'referee paid the allowances directed by the order, including .$2,000 to the plaintiff’s attorney. On March 2, 1899, a new attorney was substituted by order as attorney for the plaintiff. Bpon his application, after hearing the former plaintiff’s attorney, the order or judgment of September 28, 1898, was modified and amended by striking out the allowance to the plaintiff’s attorney and the attorneys for the adult defendants, and giving to plaintiff’s attorney *596an allowance of $200, and reducing the compensation of the guardians *ad litem.*The attorneys for the defendants and the guardians *ad litem have*acquiesced in the" modification- of the order and have indicated their willingness to return to the referee the difference between the respective amounts they have been paid under, the order of September 28, 1898, and the amounts awarded to them by the modified and amended decree-of April 22, 18.99. The former attorney for thé plaintiff, however, declines to return to the referee the sum of $1,800, the difference between the original allowance to him and the amount awarded - by the amended order, and. this motion is made to compel him to do" so. The original allowance of $2,000 was. expressly forbidden by statute at the time the order awarding it was made. Of course,, the attention of the justice who signed the order or judgment of September 28th was not called to the amendment which had then just gone into effect, and it is quite probable that none of "the attorneys had noticed it. It was peculiarly the duty of the attorney for the plaintiff to prepare the usual formal orders, and, therefore, it was his dnty to keep himself informed as to the statutory provision affecting such actions. Of all 'the parties and attorneys engaged in-the-action he was peculiarly, the .one to keep the practice regular and in accordance with the provisions of the - Code. The unauthorized allowances included in the order or judgment of September 28, 1898, must be attributed primarily to his oversight, 'and he is not, therefore, in a'position to complain of:the consequences that may flow therefrom. . I cannot accede to the proposition advanced by the attorney against whom this motion is directed, that the restitution should be made not by himself, but. by his client, the plaintiff,; because in form the allowance was made to the plaintiff. To so decree would be unreasonable. The client has never received a penny of the money. The attorney •has received it all; and the error by which it' was' directed to be paid was that of the attorney and not of the client. In any event, it is not the plaintiff that is to be affected so much as the other de-. fendants. . The plaintiff, is, of course, bound to properly compensate his attorney, but the allowance of $2,000 carné out of and proportionately' diminished not only his share but that of the defendants, I cannot escape the conclusion that the attorney should repay to the referee the greatér portion of the difference between the allowance erroneously granted and that provided for by the modified order, which has not been appealed from and stands - finreverséd and unmodified. It appears, however, that the former *597plaintiff’s 'attorney has consented to a substitution of attorneys, and has thereby lost any lien he may have had upon the plaintiff’s distributive share and he says, with apparent reason, that he thus consented in reliance upon his assumed right, then justified by an order of this court, to retain the $2,000 allowance which he had received. I do not understand that the small allowance now permitted in actions of this character constitutes a conclusive measure of the attorney’s compensation as between himself and his client, but merely regulates the amount to be paid out of the common fund. If the attorney is required to repay the amount overpaid to him, it should be only under such terms as will be equivalent to- a restoration of his lien upon the plaintiff’s distributive share of the proceeds of sale. In the present case the plaintiff’s interest in the property consisted .of an undivided one-fifth, so that the excess of allowance erroneously awarded would be paid one-fifth by the plaintiff and four-fifths by the other persons ' interested in the property. These other persons . certainly are entitled to a return of the amounts erroneously received, and which, if retained, would reduce their shares.. The attorney is entitled, to retain the $200, allowance .given by the amended decree. This amount is properly chargeable against the fund as a whole. He .is also entitled to retain one-fifth of the difference between the two allowances, or the sum of $360. That being the amount properly ■ chargeable -against the plaintiff’s distributive share of the'proceeds. This sum is payable to the attorney in preference. to claims by creditors.and' lienors against the plaintiff’s distributive share. This would leave the sum of. $1,440 which the former plaintiff’s attorney -should repay to the referee. Upon paying that sum the attorney may take an order of reference to the same referee heretofore appointed in the action to ascertain and report whaf additional sum, if any, should be paid him by his former client, the plaintiff, out -of his distributive share in the proceeds of sale. The same order may provide that the referee may retain of the plaintiff’s share a reasonable sum — say $2,000 ■—■ to meet the costs of such reference, and the amount which the referee may report, and the court approve, as proper additional compensations. I think this motion, in an action of this character, is properly made by the plaintiff’s present attorney, and I have no doubt of the power of the court to order restitution.

Ordered accordingly.