the county clerk of Yates county. That such omission was wholly unintentional. We further certify that Dr. Ottaway had all of the other requirements prescribed by law at the time of his imperfect registration, and would have been entitled to be legally registered. We also certify that proofs of the foregoing facts have been submitted to the state board of medical examiners, and that they have unanimously recommended that the imperfect registration of said John E. Ottaway in the counties of Yates and Monroe be made valid.

"In witness whereof, the seal of the University of the State of New York is hereunto affixed this 2nd day of February, 1899.

"[Seal.]

James Russell Parsons, Jr., Deputy Secretary.

"Certified by Herbert J. Hamilton, Examiner.

"[Ten cent revenue stamp.]

"Filed February 14th, 1899, Monroe county."

--And was issued pursuant to section 148 of chapter 661 of the Laws of 1893, known as the "Public Health Law," which also provides, among other things, that:

"On receiving from a state board an official report that an applicant has successfully passed the examination and is recommended for licenses, the regents shall issue to him, if in their judgment he is duly qualified therefor, a license to practice medicine. If any person whose registration

is not legal because of some error, misunderstanding, or unintentional omission shall submit satisfactory proof that he had all the requirements prescribed by law at the time of his imperfect registration, and was entitled to be legally registered, he may, on the unanimous recommendation of a state board of medical examiners, receive from the regents, under seal, a certificate of the facts, which may be registered by any county clerk, and -hall make valid the previous imperfect registration."

As already stated, it is conceded that the plaintiff's attempted registration in 1886 was imperfect, but it appears that at that time he possessed all the requirements prescribed by law to entitle him to be legally registered, and this fact is certified to by the regents in their certificate. There is not a shadow of pretense that the plaintiff has designedly evaded the law, or in any wise acted in bad faith in his attempt to register within this state. Neither is it claimed that he is not sufficiently qualified by education and experience to entitle him to practice his profession; and, such being the case, the sole question to be determined, it seems to me, relates to the effect to be given to the con

cluding paragraph of section 148, above quoted, and that is whether or not it is retroactive in its operation. In considering this question it must be borne in mind that the statute relating to and regulating the practice of medicine within this state is highly penal in its nature. It not only prohibits a person who does not conform to its requirements from practicing his profession, however well qualified he may be to do so, but it renders him liable to fine and imprisonment. Manifestly, therefore, within well-accepted rules of construction, it is a statute which must be construed liberally in favor of the plaintiff. Whitaker v. Masterton, 106 N. Y. 277; 12 N. E. 604; Raynard v. Chase, 1 Burrows, 2-6. With this rule in mind, it seems to me quite plain that the only construction to be given to the provision now under consideration is that the legislature intended to afford to persons who were in fact duly qualified to practice medicine, but who had innocently and unintentionally omitted to comply with the requirements of the law, an opportunity to rectify such omission upon furnishing satisfactory proof that they possessed all the necessary requirements at the time of their imperfect registration. This much the plaintiff has unquestionably done, and in a certificate reciting the fact the state board of medical examiners have unanimously recommended that he should receive from the regents a certificate thereof, under seal. This was subsequently obtained, and, when registered, it constituted a full and complete authority or license to practice in this state. Now, what is the effect of such a certificate upon the one which preceded it? Did it simply authorize the plaintiff to practice his profession in this state from the time of its filing? If so, it seems to me that the legislature could have given expression to such an intention in much simpler and more satisfactory language than it has employed. But, as I read it, the statute declares something more than this, and something which gives to it quite a different meaning from the one contended for; for it says that when the regents' certificate is registered by any county clerk it "shall make valid the previous imperfect registration," or, in other words, that it shall give life and validity to something which theretofore was imperfect and

invalid. As has been shown, the plaintiff made an attempt to register in the year 1886, which, although ineffectual because of its failure to comply with the requirements of the law, was nevertheless a registration; and when life and validity were infused into that registration by subsequent legislative enactment, it must, I think, within the plain terms of the statute, have been perfected and made valid as of its original date. This precise question has recently been under examination in a well-considered opinion by a jurist of conceded ability, and the conclusion reached by him is one which commends itself to my approval, and one which, if adopted by this court, as I think it should be, would necessarily lead to a reversal of the judgment appealed from. Mayor, etc., of New York, v. Bigelow, 13 Misc. 42; 68 St. Rep. 163; 34 Supp. 92. Entertaining this view, I am unable to concur in the opinion of Mr. Justice Spring. LAUGHLIN, J., concurs.

MATTER OF REDMOND.

[54 App. Div. 454; 100 St. Rep. 782; 66 Supp. 782.]

(Supreme Court, Appellate Division, First Department. November 16,

1900.)

1. ATTORNEY AND CLIENT-COLLECTION OF FUNDS-SUCCESSOR IN INTEREST -SUMMARY PROCEEDING.

While a summary proceeding to compel the payment of money by an at

NOTE. SUMMARY REMEDY OF CLIENT AGAINST ATTORNEY.

a. Scope of note.

b. In general.

c. Availability-When relation of attorney and

client does not exist.

d. Practice.

a. Scope of note.

An extensive note on this subject can be found in 6 Ann. Cas. 6-16, which covers the cases pror to 1898. The present note is merely supplemental and brings the prior one down to date.

torney cannot be maintained unless the relation of attorney and client existed between the parties when the attorney received the money, the client's successor in interest can compel payment, though the relation has never existed between the successor and the attorney.

2. SAME.

Decedent was adjudged a lunatic, and a committee of her person and es

tate was appointed. The attorney for the committee received money growing out of a transaction of the lunatic for safe-keeping only. The committee died, having rendered no account of her proceedings as committee, ar no settlement was had. Held, that the relation of at torney and client did not exist between the attorney and the lunatic and hence the latter's administratrix could not maintain a summary proceeding to compel the attorney to pay over the money.

Appeal from special term, New York county.

SUMMARY REMEDY OF CLIENT AGAINST ATTORNEY,-continued.

b. In general.

A client is entitled to an order compelling his attorney to pay over money wrongfully collected and withheld by the latter.

Pritchard v. Marvin, 33 App. Div. 639; 90 St. Rep. 974; 56 Supp. 974. To establish his right to retain moneys or the expenditure thereof, in summary proceedings instituted against an attorney, he must show in detail what has been done with the money and justify its retention or expenditure. It is not enough for him to state that he has retained it for counsel fees and for money which he has paid out on the client's account. Matter of Raby, 29 App. Div. 225; 85 St. Rep. 552; 51 Supp. 552. Matter of Ernst, 54 App. Div. 363; 100 St. Rep. 620; 66 Supp. 620.

In other words, the attorney must show the services and disbursements in detail, and establish the reasonableness of his charges by evidence suffi cient to justify a finding by a court or jury to that effect.

Matter of Ernst, 54 App. Div. 363; 100 St. Rep. 620; 66 Supp. 620. Matter of Raby, 25 Misc. 240; 89 St. Rep. 87; 55 Supp. 87.

An application for an order to compel an attorney to pay over money should not be dismissed on a mere averment that he has retained it as compensation, particularly where the amount involved is more than 50 per cent. of the money's collected.

Matter of Ernst, 54 App. Div. 363; 100 St. Rep. 620; 66 Supp. 620.

An order may be made by a surrogate's court, upon the settlement of the accounts of executors, directing their attorney to deposit in a bank to their credit money which had been deposited in a bank in the testator's name,

Application by Catherine M. J. Redmond, as administratrix of Rebecca D. Champlin, deceased, for an order requiring Charles C. Leeds, an attorney, to pay over certain money. From an order denying the application, petitioner appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

Isaac N. Miller, for appellant.

Latson & Bonynge (Almet R. Latson, counsel), for respond

ent.

HATCH, J. The application seems to have been denied in the court below upon the ground that it appeared upon the face of

SUMMARY REMEDY OF CLIENT AGAINST ATTORNEY,-continued.

and which the attorney obtained at the time it was drawn out and was retaining as security for legal services rendered the executors. Such order cannot be deemed prejudicial to the rights of the attorney.

Matter of Rowland, 55 App. Div. 66; 100 St. Rep. 1121; 66 Supp. 1121. The court has power, upon modifying a final judgment in partition by reducing an extra allowance granted to the plaintiff's attorney, to require the latter to make restitution of the excess after a deduction therefrom of compensation for his services, although the plaintiff has executed to such attorney a general release of all claims and demands and has procured the substitution of another attorney.

Cooper v. Cooper, 51 App. Div. 595; 98 St. Rep. 901; 64 Supp. 901.

The granting of an order appointing a referee to take proof, in a proceeding instituted to compel an attorney to pay over funds to his client, is not justified upon a petition, all the material averments of which are stated to be upon information and belief, signed by a person describing himself as "Attorney for the Petitioners," and verified by him upon information and belief, the grounds of which latter are stated to be correspondence had with one of the petitioners, where the only reason alleged for the failure of the petitioners to verify the petition is that they are residents of another state.

Matter of Curtis, 51 App. Div. 434; 98 St. Rep. 691; 64 Supp. 691.