In re Bachrach

The appellant is an attorney and counselor at law and was employed by the petitioner to collect a fund of $2,500, which had been received and was held by the Jewish Foster Home of Philadelphia under a settlement - made by one Silverman, for the use and benefit of the petitioner during her fife, “ with the provision that in the event of her death without lawful issue the funds should revert to the Foster Home.” By the terms of his employment the attorney was to make no charge unless he succeeded in recovering the fund, and in that event he was to be paid a reasonable sum for his services. The Foster Home claimed the right to hold the fund pursuant to the-terms of the settlement and declined to pay it over. The appellant negotiated with the attorney for the home the submission of a case to the United States District Court on an agreed statement of the facts. The cause was placed on the calendar and brought to argument and argued and briefs were submitted. The *838appellant recovered for his client the entire amount of the fund, which was paid. He incurred disbursements aggregating $72.15, and for his disbursements and services he deducted the sum of $822.15, and paid the balance over to his client, who, being dissatisfied with the charge, instituted this proceeding to determine the amount of his lien upon the fund retained by him and to compel him to account to her for the balance. On the affidavits presented on the motion an order was made allowing the appellant to retain $300 for his lien for services and directing him tb return the balance, and providing that in the event of his refusal to accept $300 a reference would be ordered to establish the value of his services. The appellant declined to accept the $300, but before the hearing on the reference he offered to take $500 and to return $250 to his client, which offer was declined. The referee heard the evidence offered by. the petitioner and the appellant, which is not printed in the record, and reported that the value of the appellant’s services and the amount of his lien was $600. The report was confirmed and the appellant was ordered to pay the balance, being the sum of $150, to the petitioner. No. order was made with respect to the expenses of the reference. The appellant took up the report of the referee paying the referee the sum of $100 on account, and the stenographer the sum of $50 on account, and appears to have been obliged, as a condition of receiving the report, to enter into an agreement in writing with the referee to pay him the balance of a bill rendered by the referee for his charges and for stenographers’ fees aggregating, including the $150 paid, the sum of $777.25.

We are of opinion that in the circumstances the petitioner. should bear the reasonable expenses of the reference, but that the fees of the referee and his disbursements, if he was authorized or if it became necessary to employ a stenographer, should be taxed, and if on the taxation thereof it appears that they are less than the sum of $150, the appellant should be ordered to pay the difference between the fees as taxed and the sum of $150 to his client, and if more than $150, the petitioner should be required to pay the balance. If the appellant has obligated himself to pay more to the referee than the latter was authorized to charge, his client should not-be required to reimburse him.

*839It follows that the order should be reversed and the matter remitted to the Special Term to tax the fees of the referee and disbursements authorized by the parties or reasonably necessary and make a final order in accordance with the views expressed in this opinion.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed and matter remitted to Special Term as directed in opinion.