In re Tyndall

The expa/rte order of June 1, 1903, approving of the . contract between the special guardian -and Tyndall is ineffective- against this infant, who was not a party to the proceeding. Moreover the contract was made while'the action was being prosecuted by the plaintiff in forma pauperis,and by section 460 of the Code of Civil Procedure Tyndall was bound to prosecute that action withqtit compensation and the contract was, therefore, unenforcible. The decree of June -13, 1904, purporting to settle the accounts of Tyndall and allowing this item as compensation was wholly without jurisdiction for failure to serve the citation upon the infant himself, (Potter v. Ogden, 136 N. Y. 384.) Upon the accounting, therefore, which resulted in the decree from which this appeal is taken there was no adjudication binding upon the surrogate as to the allowance of this compensation, and he- was free to act upon the facts ás were then presented to him. In the opinion of the learned surrogate he states that he was; without jurisdiction to pass upon this claim, but that the allowance ;of compensation must be determined by the court in which the action, was tried. (48 Misc. Rep. 39.) The decree itself, however, only declined to allow compensation Until the same'shall be determined by “ the proper tribunal,” In our view of the case it is. unnecessary *299to decide whether or not the surrogate could have assumed jurisdiction to pass upon this claim. He might well, as matter of pro- . priety or discretion, have declined to pass upon it and sent the parties into the United States court for the determination thereof. Upon an appeal from a surrogate's decree this court has the same power to decide the questions of fact that the surrogate had, and may, in its discretion, receive further testimony, and may affirm, reverse or modify the decree or order appealed from as to any and all parties. (Code Civ. Proc. §§ 2586, 2587.) These provisions of the Code have been held to give the Appellate Division upon these appeals the power of the surrogate himself. (Matter of Rogers, 10 App. Div. 593; Matter of Laudy, 78 Hun, 479; Matter of Drake, 45 App. Div. 206; 60 N. Y. Supp. 1023.) If, in our judgment, the decree appealed from be a proper one, we may affirm it, although based upon an erroneous conception either of the facts or of the law. While under the United States, statutes there is no provision as is found in our statutes that in an action brought by a plaintiff vn, forma pauperis the attorney shall receive no compensation, nevertheless, the right of an attorney to receive compensation is held by the United States courts to be under the control and guidance of that court, which, notwithstanding an agreement for specific compensation, will, nevertheless, determine the compensation to be allowed the attorney as upon a guantum mer uit. In Whelan v. Manhattan R. Co. (86 Fed. Rep. 219, 220) the rule is thus stated by Judge Lacombe : “ Once it is shown to the court that there is a cause of action ‘ worthy of a trial,’ which plaintiff, a citizen of the United States, cannot prosecute without incurring indebtedness, which such citizen is too poor to pay, then Congress prepares a way whereby such poor citizen may have his day in court without incurring such indebtedness. Hot only is he to be relieved from securing the costs of his adversary, but an attorney is to be provided for him by the court, who will prosecute his cause of action without stipulating for some compensation in the event of success larger than the guantum meruit. In other words, the ‘ poor citizen ’ will not be compelled, by reason of his poverty, to enter into any contract more oppressive than such as could be made by his more fortunate fellow-citizen. The attorney assigned by the court, in the event of non-success, will, of course, receive nothing; in the event of final success, he may *300apply to the court for an order fixing a fair compensation for thé services he may actually render, which will be paid to him out of the fund recovered, and the balance Only paid over to plaintiff. .

“ If the attorney who brought the action is willing to continue the litigation on those terms, he will be assigned to represent plaintiff ; if not, the court will find some other attorney to prosecute her . cáse.” '

- We are of opinion that the-decree made was an eminently proper • one and should stand. ' ,

Counsel both for thé appellant and respondent stated upon the argument that, since the making of this decree application had been . made in the United States court for a determination of the amount of compensation which- should be paid to this attorney; -that a hearing was had before a master who determined that the appellant should have one-third of the recovery-in addition to certain allowances for expenses. This report of the master was confirmed by the court,- after allowing to the. attorney an additional sum for expenses. If .these facts had been put before us formally, wé might here perfect the decree without sending the matter back to the surrogate. Without the figures stipulated before us, we must send the matter back to the surrogate, before whom the determination of the United States court can be presented. The time within which the appellant was authorized by the decree to present the' order of the United States court was fixed as April 1, 1906. That time should be extended to March 1, '1907, and the decree so modified, and as modified affirmed, with costs. ••

All concurred; Parker, P. J., not sitting.'

Decree modified as per ' opinion, arid as modified affirmed, with costs. ■ .