First Department, December, 1920.

[Vol. 194. 19th day of April, 1920, denying defendant's motion to compel the plaintiff to reply to the second and third separate defenses alleged in the defendant's answer which set up the six and tenyear Statutes of Limitations, respectively, and to give security for costs.

Leon N. Futter of counsel [George Gordon Battle with him on the brief], Myer Nussbaum, attorney, for the appellant.

Frederick W. Sparks of counsel [Sparks, Fuller & Stricker, attorneys], for the respondent.

GREENBAUM, J.:

The action is brought by Joseph F. Coffey, as administrator with the will annexed of Michael J. Coffey, deceased, who died on March 20, 1907, leaving a last will and testament which was probated in the Surrogate's Court of Kings county. The complaint alleges eight causes of action. In the causes of action numbered 1, 2, 3 and 4 plaintiff alleges that plaintiff's decedent in his lifetime was the owner of certain pieces of real property which were sold and that the proceeds or a portion thereof were in each case turned over to the defendant by the decedent during his lifetime to and for his use and benefit to be accounted for and returned to him by the defendant. The remaining causes of action 5, 6 and 7 in effect allege or attempt to allege the transfer to the defendant of certain properties or the proceeds thereof subsequent to the death of the decedent to hold the same to and for the use and benefit of the estate of the decedent and to be accounted for and returned by the defendant.

It is unnecessary on a motion to compel a reply to decide whether the complaint is good or bad. (Dittenfass v. Horsley, 171 App. Div. 507; Olsen v. Singer Manufacturing Co., 138 id. 467.) The allegations in the complaint in each of the alleged causes of action are that the plaintiff as administrator with the will annexed made a demand upon defendant on or about the 15th day of January, 1917, that he pay over to the plaintiff as such administrator the sums of money variously alleged to be due. These allegations of demand are not inconsistent with the fact that a prior demand or demands for the payment of these moneys had been made either by plaintiff or

App. Div.]

First Department, December, 1920.

decedent, as the case may be, nor with a state of facts which would establish a clear renunciation or repudiation of the acts of the defendant at a time more than six or ten years before the commencement of this action so as to constitute a bar by reason of the Statute of Limitations applicable thereto. (Woolley v. Stewart, 222 N. Y. 347.) The complaint is of such a character that it would seem to be peculiarly proper to require the plaintiff to reply to the defenses which set up the Statute of Limitations to enable the defendant either to test the validity of these defenses or to narrow the issues upon the trial.

The order so far as it denies the motion to compel the plaintiff to reply to the second and third defenses in the answer should be reversed and said motion granted. So far as the order denies defendant's motion to compel the plaintiff to give security for costs it is affirmed. No costs to either party on this appeal.

CLARKE, P. J., LAUGHLIN, DOWLING and MERRELL, JJ.,

concur.

Order so far as it denies motion to compel plaintiff to reply to second and third defenses reversed and said motion granted and in all other respects affirmed, without costs to either party of this appeal.

In the Matter of the Application of MARGARET FELLINNI for an Order Requiring JACOB KLEIN, an Attorney, to Pay over Moneys Received and Retained by Him.

JACOB KLEIN, Appellant; MARGARET FELLINNI, Respondent. First Department, December 17, 1920.

Attorney and client summary proceeding to compel attorney to pay over such proceeding cannot be maintained by person who did not employ attorney.

Where an attorney at law, employed by an administrator to prosecute an action to recover for death caused by negligence upon a contingent fee amounting to one-half of the recovery, has in fact paid one-half of the recovery to the administrator who employed him, the wife of said APP. DIV.-VOL. CXCIV. 29

First Department, December, 1920.

[Vol. 194. administrator, who in no way employed the attorney, is not entitled to maintain a summary proceeding to compel him to pay to her a portion of the recovery as next of kin of the decedent, for the relation of attorney and client does not exist between them.

It seems, that if said person has any grievance, her proper procedure would be against the administrator.

APPEAL by Jacob Klein from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of September, 1920, granting the application and directing Jacob Klein to pay said petitioner the sum of $1,226.26 within ten days after service of order with notice of entry.

Moses Feltenstein of counsel [Julian J. Raphael, attorney], for the appellant.

Joseph J. Jacobs, for the respondent.

GREENBAUM, J.:

The appellant, Jacob Klein, an attorney, appeals from an order entered upon a motion made at Special Term to compel him to pay over to the petitioner the sum of $1,226.26, her alleged share as next of kin in a recovery of damages obtained in an action brought by her husband, as administrator of his infant son, against the American Express Company for the death of the child due to defendant's negligence. There were two trials. The first trial resulted in a disagreement and the second in a verdict upon which a judgment was entered in the sum of $3,452.52. The attorney had a written contract of retainer with the administrator under which he was entitled to receive one-half of the recovery in addition to costs and taxable disbursements in the action. The sole beneficiaries were the petitioner and her husband who now are and during the pendency of this action were living together. It is undisputed that fifty per cent of the recovery was paid to the administrator pursuant to the terms of the contract, with the consent of the respondent. There is no affidavit submitted on the part of the husband on the motion, and no explanation is given as to the husband's silence in the matter. It also appears that this motion was made about a year after the payment to the administrator. The petitioner does not aver

App. Div.]

First Department, December, 1920.

that her husband failed or refused to pay her share or any portion thereof to her, nor is there any claim that her husband is hostile to her.

The attorney was retained by the administrator and, indeed, the petitioner disclaims employing him as her attorney. Since there was no relationship of attorney and client between the petitioner and the attorney, a summary proceeding to compel the attorney to pay is not maintainable. (Matter of Minnesota Phonograph Co., 148 App. Div. 56; affd., 212 N. Y. 574; Matter of Sigmund Contracting Co. v. Montegriffo, 153 App. Div. 374; Matter of Niagara, Lockport & Ontario Power Co., 203 N. Y. 493, 496; Taylor v. Long Island R. R. Co., 38 App. Div. 595; Hess v. Joseph, 7 Robt. [N. Y.] 609; Matter of Schell, 58 Hun, 440.)

If the plaintiff has any grievance it seems that the proper procedure would be against the administrator.

Under the law and upon the facts the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

CLARKE, P. J., LAUGHLIN, DOWLING and MERRELL, JJ.,

concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. DANIEL E. WOLFE, Appellant, v. EUGENE A. JOHNSON, Keeper of City Prison (Ludlow Street Jail), Respondent.

First Department, December 24, 1920.

Arrest arrest in civil action followed by release on giving bail when force of original process is exhausted- habeas corpus when judgment debtor unlawfully detained.

Where an order of arrest was issued in a civil action, and the defendant was released on giving bail, and after judgment for the plaintiff and execution against property returned unsatisfied another execution against the person of the defendant was issued and returned as not found," and

First Department, December, 1920.

[Vol. 194 thereafter the sureties of the defendant being sued on the bail bond surrendered the defendant to the sheriff who again released him on other bail which was not furnished for the jail liberties as required by section 150 of the Code of Civil Procedure, and the sheriff again took the defendant into custody, he will be released on habeas corpus, for the only process upon which the defendant is held is dead and the power of the original warrant is exhausted so that he is unlawfully detained.

APPEAL by the relator, Daniel E. Wolfe, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of October, 1920, dismissing a writ of habeas corpus and remanding the relator to the keeper of the city prison.

Jerome A. Strauss of counsel [Diamond, Abrahams & Strauss, attorneys], for the appellant.

George W. Olvany, for the respondent.

CLARKE, P. J.:

An order of arrest dated July 30, 1918, was issued out of the Supreme Court, New York county, in an action in which one Fischman was plaintiff and Daniel E. Wolfe, relator, was defendant, which order commanded the sheriff to arrest the said Wolfe and hold him in bail in the sum of $1,000. Pursuant to said order Wolfe was arrested by the sheriff and thereafter, on August 10, 1918, in order to procure his release, said Wolfe duly procured such bail and was released from custody and the sheriff thereupon made his return on said order of arrest in accordance with section 590 of the Code of Civil Procedure. Subsequently, on March 13, 1920, judgment was taken in said action in favor of the plaintiff for $3,339.73, which judgment was duly docketed on that day. On March 13, 1920, an execution against the property of Wolfe was issued and returned unsatisfied, and thereafter, on March 19, 1920, an execution against his person was issued to the sheriff who was unable to effect the arrest and returned the execution as

not found" on May 20, 1920. Thereafter Fischman commenced an action against the sureties on said bail bond. On June 16, 1920, Wolfe was surrendered by said sureties to the sheriff in exoneration of his bail and the sheriff