FORM No. 1219. Condition that security be given,11 and direction for reference. Upon condition (1) that within days from the date of this order an undertaking in the sum of dollars, 12 executed by two sufficient sureties to be approved by this court, be given to said [displaced attorney], conditioned to pay any sum which may be found due to him for [indicate ground of claim; may add:] a copy of the proposed security to be served on said [displaced attorney] [two] days before presentation of the same to the justice, with notice of the day of its presentation for removal. (2) That it be referred to R. F., Esq., of to take the proofs of the respective parties and to report what amount, if any, is due from plaintiff to said [displaced attorney] for said services and disbursements.13 FORM No. 1220. Direction for delivery of papers,14 etc. Within [one day] after the approval of the undertaking herein required or, the payment hereinbefore required—or, the service of a certified copy of this order], let the said [displaced attorney] sign a consent for the substitution of [name] in his stead as the attorney of said A. B., in the above mentioned ac 11 Sustained by Cunningham v. Widing, 5 Abb. Pr. 414, n. And see note in 14 Fed. Rep. 781. Or, an order may be made directing a reference to inquire into the value of the services, and providing that on the confirmation of the referee's report and payment to the attorney of the amount adjudged due, the substitution be granted. See Dean v. Driggs, 82 Hun, 561, 31 N. Y. Supp. 548, aff'd, 145 N. Y. 595. Or, the court may direct the substitution, but provide that the displaced attor ney may retain the papers in the action until the sum due him is ascertained and paid. See Angle-Cont. Chem. Works v. Dillon, 111 App. Div. 418, 97 N. Y. Supp. 1081. This is a reference to take evidence and report; no exceptions need be filed, but a motion to confirm brings all questions before the court. Dean t. Driggs, supra; Frost v. Feinach, 40 Misc. 412, 81 N. Y. Supp. 246. 12 This will limit the recovery upon the undertaking, at least against the sureties, to the amount specified, even though more should be proved and found due. 13 The report, duly obtained and confirmed, will be conclusive on the client. 7 Daly, 7. And the court may order payment and enforce it by execution. Vol. I, pp. 252, 304; Greenfield v. Mayor, etc., of New York, 28 Hun, 320. But in some cases the attorney may have a right to sue and a trial by jury. As to requiring attorney to pay costs of unsuccessful reference, see Bogart v. Electrical Supply Co., 27 Fed. Rep. 722. 14 Sustained by Cunningham Widing, 5 Abb. Pr. 414, note; and see Matter of Davis, 7 Daly, 1. The court may, on motion, require the displaced attorney to give his successor copies of the entries in his register stating the proceedings had, so far as necessary, for the performance of the latter's duties. This is done, after proper request and unreasonable refusal, subsequent to substitution. . tion of A. B. against Y. Z., and let him deliver over to said [name] such consent, and the papers, pleadings, copies of deeds, and all other papers, of every character, connected with the said action of A. B. against Y. Z., now in his possession, under oath.15 FORM No. 1221. Condition where disposition of fund is under immediate control of court.16 That in the event of a recovery in the action no portion thereof shall be paid out without notice to [attorney] and opportunity given him to have the amount of his compensation fixed. FORM No. 1222. Condition to stipulate for lien of judgment. Upon said [name of client] entering into a stipulation in this cause, duly acknowledged, to and with said [attorney] that the sum of dollars due to him [or, that his claim] for his services herein shall be a lien upon any judgment which may be recovered herein by said [client] or his successors in interest. FORM No. 1223. Stipulation by substituted attorney. Upon his filing a stipulation that the amount to be paid to [former attorney], when fixed, shall be a lien upon the cause of action sought to be enforced, and upon the proceeds thereof, or upon any amount which should come into the hands of the sustituted attorneys in the enforcement of any judgment obtained in the action, or upon any settlement of the cause of action sued on [and, continuing to appoint a referee to take proof of the amount to be paid the former attorney.]17 FORM No. 1224. Condition where no agreement with attorney is established. 18 To take proof as to the terms of the retainer of Esq., as attorney for plaintiff herein, and the value of his ser 15 Since the lien of an attorney attaches to the client's papers in his possession not only for the charge in the particular action, but for any general balance due (Mathot v. Triebel, 98 App. Div. 328, 90 N. Y. Supp. 903), this may be a proper condition only if providing for the payment or the securing of payment of any general balance asserted. 16 For example, where an infant sues by guardian ad litem. Bryant v. Brooklyn Heights R. Co., 64 App. Div. 542, 72 N. Y. Supp. 308. 17 From British Empire Typesetting Mach. Co. v. Spellissy, 83 App. Div. 640, 82 N. Y. Supp. 47. 18 From Kane v. Rose, 87 App. Div. 101, 84 N. Y. Supp. 111. vices, and the amount of his necessary disbursements, and to report the same to the court, with his opinion thereon; and that the said [attorney] have a lien to the extent of the amount hereafter allowed by the court upon the report of said referee upon plaintiff's cause of action and upon any judgment rendered in his favor therein, or settlement effected thereon, and that no settlement of said cause of action be made except upon and after notice to said [attorney]. FORM No. 1225. Order confirming referee's report, and directing payment of amount found as value of attorney's services.19 ORDERED, that the report of said referee be and the same hereby is in all respects confirmed; that the plaintiff is hereby directed to pay to within twenty days from the date of the service of a copy of this order upon the attorney for the plaintiff, the sum of dollars, the amount so found justly due said [attorney], together with the sum of fees and expenses of said reference. FORM No. 1226. dollars, the Notice to appoint new attorney in case of death or disbarment.20 [Title of court and cause.] To [name of party whose attorney has ceased to act.] 21 Please take notice, that you are hereby required to appoint an attorney in place of A. T., your former attorney of record herein [if cessation to act is not already known to the party addressed, may state it, as thus: who died on or about the day of 19 or otherwise indicate disbarment,22 suspension, or other disability], and notify such new appointment 19 From Kane v. Rose, supra; the court held that, under the order of substitution next above (Form 1224) this order was proper, and required the payment of the amount to the attorney, or in default of payment execution against personal property could be issued. 20 Where a party before judgment (see Vol. I, p. 392), or in the course of a proceeding by attorney after judgment, loses his attorney by death or other incapacity, the adverse party must give such a notice before proceeding further against him. Code Civ. Pro., § 65; Given v. Driggs, 3 Cai. 150. This Form is sufficient at common law. Given v. Driggs (above). As well as under the statute. N. Y. Code Civ. Pro., § 65. 21 Notice must be given to each of several parties if more than one was represented by him. Hickox . Weaver, 15 Hun, 375. 22 See Diefendorf v. House, 9 How. Pr. 243; Chautauqua Bank v. Risley, 6 Hill, 375; N. Y. Code Civ. Pro. § 65. to the undersigned within thirty days after service of this notice, or the cause will proceed without such attorney.2 [Date.] 23 [Serve personally, or take direction of court how to serve.] FORM No. 1227. Affidavit to obtain order for service, by mailing or substitution, of notice to appoint new attorney.24 [Title of court and cause.] [Venue.] C. D., being duly sworn, says: I. That he is managing clerk for the plaintiff's attorney herein, whose office is at II. That this action is brought [here briefly indicate object, and how the defendant, whose attorney has ceased to act, is to be affected by the judgment sought, for instance] to foreclose a mortgage upon real property, and the defendant Y. Z. is made a party merely as having some lien upon or interest in the mortgaged premises, which lien or interest, if any, accrued since the lien of said mortgage; and no personal claim is made against him. III. That the defendant Y. Z. appeared in the action by Z. T., his attorney [here briefly state the condition of the cause]. T. died [or, was disbarred by the Appellate Division for the department or otherwise state how he ceased to act], and said Y. Z. has not appeared by any other attorney, and has not since then, to the best of deponent's knowledge and belief, taken any steps in the action. V. That deponent has attempted to make personal service cn said Y. Z., who resides at 23 If a new attorney is not appointed within thirty days, the adverse party may proceed, but must give notice to the party of any proceeding not in its nature ex parte. Hoffman v. Rowley, 13 Abb. Pr. 399; Jewell v. Schouten, 1 N. Y. 241. Before the lapse of that time pro of the annexed notice to ceedings, if before judgment (Hall v. Putnam, 23 Wkly. Dig. 513) are stayed by the statute. Com. Bank v. Foltz, 13 App. Div. 603, 43 N. Y. Supp. 985: aff'd, 163 N. Y. 570; Hickox v. Weaver, 15 Hun, 375. 24 Draper v. Holland, 3 Edw. 272; N. Y. Code Civ. Pro., § 65. appoint another attorney, but such personal service cannot be made for the following reasons: [State reasons; see Forms in this collection for service of summons by substitution or mailing, Volume I, p. 657, etc.] VI. That, as deponent is informed and believes, the defendant Y. Z. has not any general agent or attorney within this State, nor any agent or attorney within this State for any purpose [except M. N., who resides at and who is his agent for the purpose of ]; and the sources of deponent's information and the grounds of his belief are [setting them forth]. [Or, state other facts to guide the court in directing a proper substituted service.] VII. That no previous application [etc.; see p. 1172.] [Jurat.] FORM No. 1228. [Signature.] Order for service by substitution or mailing. [Title of cause.] At a Special Term [etc., as in On reading and filing the annexed affidavit of C. D., verified the 19 and copy notice therein referred day of to, and on motion of A. T., attorney for [plaintiff]: ORDERED, that said notice to appoint another attorney in the place of Z. T., deceased, be served on Y. Z. by depositing in the post office at [the place of business of the applicant's attorney], on or before the day of 19 , a copy of said notice and affidavit, together with a certified copy of this order, contained in a securely closed postpaid wrapper, directed to said Y. Z., at [or otherwise, as directed by the court]. [Affidavit of service, personally or by substitution or mailing (see Forms in Volume I, pp. 641, 661, 701-3), to be made and filed with the clerk, before further proceedings.] FORM No. 1229. Notice of motion by attorney (or order to show cause) to set aside satisfaction of judgment and have leave to issue execution thereon to the amount of his lien.25 [Commencement as in Form 815, p. 1171, or 818, p. 1173, omitting clause appropriate to motion before a judge, and substi 25 Plaintiff's attorney has an action in equity against his client, and the defendant, who have settled the action without the attorney's partici |