Opinion
October 23, 1961
In a proceeding to substitute attorneys for the plaintiffs in a negligence action for the recovery of damages for injuries to person and property, the discharged attorney appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, entered April 17, 1961, granting plaintiffs' motion for substitution, as fixed his fee at 17% of the recovery or settlement plus his disbursements of $189, and as directed that such fee and disbursements be paid out of any recovery or settlement. Order, insofar as appealed from, affirmed, without costs. It appears that upon the argument of the motion the retiring or discharged attorney requested a lien for a percentage fee to be fixed by the Special Term immediately without awaiting the outcome of the action, and asked that he be immediately reimbursed for his disbursements. The percentage fee of a retiring or discharged attorney is normally fixed after the recovery. However, when at his request it is fixed at the time of substitution, his subsequent objection upon the ground that the determination was premature will be disregarded. It is customary in negligence cases for disbursements to be repaid out of the proceeds of the recovery ( Matter of Weiss [ Tullman], 196 N.Y.S.2d 255, 261, revd. on other grounds 11 A.D.2d 63). Beldock, Acting P.J., Klenfeld, Christ, Pette and Brennan, JJ., concur.