Summary
In Matter of Bucken v. Busch (203 App. Div. 717, 718) the Appellate Division, first department, in dealing with fees already paid to an attorney, said: "While ordinarily the court will not entertain a summary proceeding to test the fairness of a contract but will remit the petitioner to his remedy at law (Matter of Jeffries, 219 N.Y. 573), yet this power unquestionably does exist in the court, and the facts in the case at bar would seem to require its exercise."
Summary of this case from Matter of RosenbergOpinion
December 1, 1922.
John E. Donnelly of counsel, for the appellant.
Herman Joseph of counsel, for the respondent.
This is a summary proceeding to recover moneys paid to an attorney. The facts in so far as they are necessary to call attention to the questions involved are briefly as follows:
A magistrate refused to entertain a charge of felonious assault against the petitioner, but did entertain one of disorderly conduct, upon which the petitioner pleaded guilty upon the advice of the respondent and was fined ten dollars. Respondent, who is an attorney, allotted a portion of his office to a person in the bonding business, who bonded petitioner in the sum of $1,000 bail and respondent was subsequently retained by the petitioner to represent him. The petitioner, who was a laborer, had in a savings bank $1,000 saved from his wages. The petitioner claims that the respondent was to charge him $200, but when he learned of the amount in the bank (the bank book being kept by the bondsman), the charge was increased to $550 which petitioner paid upon the representation of the respondent that the charge was very serious and that the petitioner was sure to go to prison. The respondent admits saying that the charge was serious and that his fee was to be $350 of which he was paid in advance $300.
While ordinarily the court will not entertain a summary proceeding to test the fairness of a contract but will remit the petitioner to his remedy at law ( Matter of Jeffries, 219 N.Y. 573), yet this power unquestionably does exist in the court, and the facts in the case at bar would seem to require its exercise. The outstanding facts are that the charge was at most one of disorderly conduct and the petitioner pleaded guilty upon the advice of the respondent and was fined ten dollars. Respondent seeks to justify his fee by claiming a long interview with the deputy assistant district attorney in charge and a long talk with the arresting officer, and making a plea for clemency to the magistrate. A charge of such overreaching rapacity, made possible through ignorance and fear, calls for a speedy hearing and determination. An officer of this court has a particular obligation to do what is proper and right under the circumstances of a given case, and this the respondent, in so far as it is possible to judge from the papers (but which will appear more fully upon the hearing), has not done.
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the matter referred to an official referee.
CLARKE, P.J., DOWLING, PAGE and GREENBAUM, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and matter referred to an official referee. Settle order on notice.