agreed to. The defendant called several meetings of the men and of the district council, and it was overwhelmingly decided by both men and council not to accept the settlement. Thereupon the defendant. Hutcheson, as president of the general body, without charges or trial, acting under the provisions of section 10 of the constitution and laws of the organization, summarily suspended the district council and the local unions, and directed all members to join other unions which he prepared to form. He also demanded that all the books, papers, and property of the local unions and district council be transferred to the general secretary in trust, and proceeded to do other things of which plaintiff, the local unions, the district council, and other members complain. The preliminary injunction restrains the enforcement of the suspension, the interference with the property, the reorganization of the unions and district council, and the disciplining of the members.

[1] A preliminary objection that the defendant association is a foreign voluntary association and as such cannot be sued in this jurisdiction is untenable. The objection might be good if the association were incorporated. People ex rel. Solomon v. Painters, 218 N. Y. 115, 112 N. E. 752.

[2] The defendant association here is composed of individuals, all of whom are ultimately individually liable. The method of suit and enforcement of judgment (C. C. P. § 1919 et seq.) relate only to the remedy (Messler v. Schwarzkopf, 35 Misc. Rep. 72, 71 N. Y. Supp. 241). The injunction is binding on all the members, though only the officers be served. Russell v. Stampers' Union, 57 Misc. Rep. 96, 107 N. Y. Supp. 303; Bossert v. Dhuy, 166 App. Div. 255, 151 N. Y. Supp. 877.

[3, 4] It seems to me that, while many points were raised upon the argument and discussed in the briefs, only one is properly before me for decision that relating to the validity of the suspensions. The portion of section 10 of the constitution and laws of the association. pertinent here reads as follows:

"He (the president) shall * district council

*

* have power to suspend any local union, for violation of the constitution. * Any local union, district council, * which willfully or directly violates the constitution, laws or principles of this United Brotherhood or acts in antagonism to its welfare can be suspended by the general president, with the consent of the general executive board. * Whenever, in the judgment of the general president, subordinate bodies or the members thereof are working against the best interests of the United Brotherhood, or are not in harmony with the constitution and laws of the United Brotherhood, the general president shall have power to order said body to disband under penalty of suspension."

Section 30 provides that:

* *

and funds held by

be suspended or expelled all said local union must be

"If at any time a local union should property forwarded immediately by express to the general secretary, to be held in safe-keeping for the United Brotherhood as trustees for the carpenters in that locality until such time as they shall reorganize."

It is not disputed that the district council and the local unions own considerable property. Their title to this would be destroyed or im

160 N.Y.S.-64

paired if these sections are valid. The rule that a member of an organization cannot be suspended or expelled without charges and due trial where property rights are involved is well settled. Wachtel v. Noah Widows and Orphans Soc'y, 84 N. Y. 28, 38 Am. Rep. 478. No distinction may be drawn in this respect between individuals and associations. Bacon on Benefit Societies, §§ 104, 116, subd. 4; Bossert v. Dhuy, 166 App. Div. 255, 151 N. Y. Supp. 877. The taking of the property of the plaintiff is not any the less illegal because it may be held for some other carpenters and not appropriated to their own use by the persons taking it. Confiscatory by-laws have always been held to be against public policy. Austin v. Searing, 16 N. Y. 112, 69 Am. Dec. 665; Wicks v. Monihan, 130 N. Y. 232, 29 N. E. 139, 14 L. R. A. 243. I approve of the decision of the Missouri Court of Appeals construing this very section 10 and holding it to be void. Swaine v. Miller, 72 Mo. App. 446. Since that case was decided, some amendments have been made to the constitution, but the essential fault persists. The effect of this constitution, if valid, would be to create a tribunal having power to adjudicate upon the rights of property of all the members and to transfer that property to others, and this the law will not permit despite the contractual obligations that may have been undertaken by means of assent to the offending constitutional provisions upon the acquirement of membership. Austin v. Searing, supra. Section 56 of the constitution provides a right of appeal, first to the president, then to the general executive body, and lastly to the convention of the whole association. It is urged by the defendants that these appeals would, if prosecuted, constitute a trial. The trial referred to in the adjudicated cases, however, is a due trial upon charges before judgment, without the added burden of the presumption of correctness of a decision. And it is to be noted that the first two appeals would be to the defendant Hutcheson and to the board that has already ratified his acts. As no man may properly sit in judgment on his own quarrel, and participation in the trial disqualifies a judge from sitting on an appeal, it would be mere folly to go through the form of appeals in succession to two disqualified tribunals. Furthermore, section 56 provides that "in no case shall an appeal act as a stay of proceedings."

While these appeals were being heard, the "irreparable damage" might be done. Although I have considered carefully all the questions raised, I pass only on the one I have discussed, as I think the others are not germane to the issue involved upon this motion. The injunction will be continued. As in my view of the case the defendants can have no interest in any event in the funds of the union which plaintiff represents, I think the present undertaking sufficient. As objection is made to the present form of the restraining order, let the form of injunction pendente lite be settled on notice.

BLUMBERG v. SCHWARZSTEIN et al.

(Supreme Court, Appellate Term, First Department. October 17, 1916.) REFERENCE 8(3)-LONG ACCOUNT-WHEN PROPER.

Although plaintiff claims to have served as attorney in three cases, covering two years, and his account comprises 70 items which defendants claim were not rendered for all of them, but should be apportioned, there is no warrant for order of reference under Code Civ. Proc. § 1013, providing for reference of long accounts.

[Ed. Note. For other cases, see Reference, Cent. Dig. §§ 16, 17; Dec. Dig. 8(3).]

Appeal from City Court of New York, Special Term.

Action by Samuel Blumberg against Monassi I. Schwarzstein and others. From an order directing compulsory reference, defendants appeal. Reversed.

Argued October term, 1916, before GUY, BIJUR, and SHEARN, JJ.

Jacob Maran, of New York City, for appellants.

Saul H. Immergluck, of New York City (Samuel Blumberg, of New York City, of counsel), for respondent.

BIJUR, J. The action is brought by the plaintiff, an attorney, to recover for professional services alleged to have been rendered to defendants.

Plaintiff claims in his brief that he performed services pursuant to three separate and distinct retainers in three separate cases; that the services covered a period of two years and consisted of upwards of seventy items; that, in addition, the defendants contend that all the services were not rendered for all the defendants and that it would be necessary to apportion them.

I cannot find in this statement by plaintiff himself of the character and extent of the litigation sufficient warrant for the order, which it is claimed is justified by section 1013 of the Code of Civil Procedure. See Prentice v. Huff, 98 App. Div. 111, 90 N. Y. Supp. 780; Pace v. Amend, 164 App. Div. 206, 209, 149 N. Y. Supp. 736, 738.

Order reversed, with $10 costs and disbursements. All concur.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

KNIPE v. WHEELEHAN.

(Supreme Court, Appellate Term, First Department. October 17, 1916.)

1. ATTORNEY AND CLIENT 189-LIEN FOR COMPENSATION.

While the cause of action may be settled by the client himself at any time, the attorney nevertheless has a lien against the defendant on the amount recovered.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 407-411; Dec. Dig. 189.]

2. ATTORNEY AND CLIENT 190(2)-LIEN FOR COMPENSATION-CONTINUING SUIT.

Where the precise nature of the retainer and contingent fee are not disclosed, and there is no allegation of fraud in a settlement by the client, though made without the attorney's knowledge or consent, as his lien protects his interest, there is no ground on which he may be permitted to continue the litigation.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 413-415; Dec. Dig.

3. ATTORNEY AND CLIENT

190(2).]

189-LIEN FOR COMPENSATION-CONTINUING SUIT. The client's right to settle the action, regardless of any supposed interest of the attorney therein, because of a contingent fee or otherwise, is equally absolute at any stage of the litigation.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 407-411; Dec. Dig. 189.]

Guy, J., dissenting.

Appeal from City Court of New York, Special Term.

Action by Thomas Knipe against Margaret Wheelehan. From an order permitting plaintiff's attorney to continue the action, after mutual settlement by the parties, defendant appeals. Reversed.

Argued October term, 1916, before GUY, BIJUR, and SHEARN, JJ. Matthew J. Wheelehan, of New York City, for appellant.

Max Greenwald, of New York City (Abraham Rosenstein, of New York City, of counsel), for respondent.

BIJUR, J. This action was brought to recover for personal injuries suffered by plaintiff.

Plaintiff's attorney claims to have been retained on a 50 per cent. contingent fee. On a trial a verdict was rendered for $1,750. Thereafter the presiding justice granted a motion to set it aside and directed a new trial unless plaintiff stipulate to reduce the verdict to $600. The plaintiff did not so stipulate, but appealed from the order. While the appeal was pending, plaintiff and defendant settled the cause of action for $200.

Upon this statement of fact, taken from plaintiff's attorney's affidavit, the order appealed from must be reversed.

[1] It is well settled that the cause of action is the client's, and that he may settle it whenever and for such amount as is satisfactory to him. Andrewes v. Haas, 214 N. Y. 255, 108 N. E. 423. That the attorney has a lien upon the client's recovery which must be recognized by all the world, including, of course, the defendant, is equally well settled. See Peri v. N. Y. Central & H. R. R. Co., 152 N. Y. 521, 46

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

N. E. 849. And in this case the defendant recognized that principle by offering to pay the plaintiff's attorney $100 as soon, he says, as he heard of the latter's claim to have been retained upon a contingent fee.

[2] Whether, under these circumstances, the attorney's claim against either his client or the defendant is for 50 per cent. of the settlement or may be extended to include a quantum meruit for the services theretofore rendered by him we are not called upon to decide, nor would it be possible to do so upon the present record, because I cannot find any allegation in the attorney's affidavit of the precise nature of his retainer. He merely refers parenthetically to "50 per cent. being the expressed compensation arranged with the plaintiff." Nor is it pertinent to consider what might be the rights of the attorney if the settlement were fraudulent in any respect (see Matter of Salant, 158 App. Div. 697, 143 N. Y. Supp. 870, affirmed 210 N. Y. 622, 104 N. E. 1140; FischerHansen v. Brooklyn Heights R. Co., 173 N. Y. 492, 501, 66 N. E. 395), as there is not the slightest intimation in the moving papers that the settlement in the case at bar was not bona fide. True, it seems to have been made without plaintiff's attorney's knowledge or consent; but in that respect his lien fully protects his interests. There is therefore no ground under the decisions for permitting the attorney to continue the litigation.

[3] The respondent seeks to distinguish between an attorney's rights before and after verdict. In the first place, whatever might be said as to a difference in the attorney's status before and after judgment, I do not think that the same arguments can be applied to the case of a mere verdict which has been set aside. But the reasoning of the Court of Appeals in the two important cases in which the relation of the attorney to his client and to the litigation are discussed (Andrewes v. Haas, supra; Matter of Snyder, 190 N. Y. 66, 82 N. E. 742, 14 L. R. A. (N. S.) 1101, 123 Am: St. Rep. 533, 13 Ann. Cas. 441) indicates that the client's right to settle the action, regardless of any supposed interest of the attorney therein because of a contingent fee arrangement or otherwise, is equally absolute at every stage of the litigation. See, also, Matter of Salant, supra, at page 699 of 158 App. Div., 143 N. Y. Supp. 870.

Order reversed, with $10 costs and disbursements.

SHEARN, J., concurs. GUY, J., dissents.

HUGHES et al. v. ECCLES.

(Supreme Court, Appellate Term, First Department. October 17, 1916.) PLEADING 8(7)-COMPLAINT CONCLUSIONS.

Complaint based on contract to pay for services, alleging performance of such services and willingness to continue such services, is demurrable as alleging conclusions, since it does not state the facts showing the nature of services to be performed, the nature of the services actually performed, or of what the alleged full performance consisted.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 18; Dec. Dig. 8(7).]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes