September 18, 1882, Orville M. Barkley, the plaintiff in action No. 1, was severely injured by the defendant in that action. April 27, 1885, the plaintiff executed and delivered to S. K. & B. C. Williams, a firm of attorneys engaged in business at Newark, N. Y., a contract, of which the following is a copy :
“In consideration of S. K. & B. C. Williams; of Newark, N. Y., undertaking. and having agreed to commence and prosecute a suit (or suits in their discretion) against the New York Central and 'Hudson River Railroad Company, for me and in my name, as my attorneys and counsel to recover of said Company, damages and injuries committed upon me and to me by said Railroad Company, or its employee or employees, at or near Fairport, Monroe County, on or about September 18th, 1882, by an engine of said Company, striking and permanently injuring me on that day, and at that place, and for loss of service and labor by means thereof, and for expenses and charges of physicians and surgeons in my sickness ;
“I, Orville M. Barkley, of Palmyra, N. Y., do hereby agree-to give and pay to them an equal third part of all damages or moneys, 'received or recovered for said injuries and causes of action in said! suit or suits in lien and place qf all other pay or compensation for their or either of their services, as such my attorneys and counsel in said suit or suits. They are to receive nothing for their said sei'Vices from me unless a recovery is liad of said Company, and then, only, said one-third of same. They are also to have any taxaable costs recovered against said Railroad Company.
“ Said suit or suits is or are to be brought in the Supreme Court, and said S. K. & B. C. Williams, or either of them, is to appear as my attorney therein.
“ Said suit or suits, or the said causes of action, are not to be com*599promised or settled without the consent and concurrence of both me, said Barkley, and said attorneys and counsel, and, upon any settlement or compromise thereof, my said attorneys and counsel are to receive the same proportion of any moneys paid in said settlement or compromise as above stated.
“ Witness my hand and seal this 27th day of April, 1885.
“ORVILLE M. BARKLEY. [l. s.]”
September 3,-1885, action No. 1 was begun by.S. K. & B. C. Williams, as attorneys for the plaintiff.
May 18, 1886, the plaintiff executed and delivered to S. K. & B. C. Williams, his said attorneys, a second contract, of which the following is a copy:
“Whereas, S. K. & B. C. Williams- are carrying on my case . against the New York Central and Hudson River Railroad Company for injuries received by me by being struck and injured by an engine of said company, at • Fairport, N. Y., on or about Sept. 18, 1882; and,
“ Whereas, my said attorneys propose to employ other counsel to help try the case, and it is proposed by them, and agreed to by me, that I employ Hon. George Raines, of Rochester, for that purpose, to be assisted, if necessary, in the preparation of the case by. his brother at Rochester.
“ Now, therefore, I do hereby agree to pay and deliver to said S. K. & B. C. Williams, one-half of all the sums and money received from said company, or paid by it, for said injuries, for their services in said action, in place of all other compensation, and also to pay said Raines and brother for his and their services therein, in place of any other pay to them; and said S. K. & B. C: Williams are to agree with said Raines and brother to compensate and pay' them from said one-half for their services. In case said Raines and brother are not engaged in said case, as above stated, this agreement to be void, and resort had to the former agreement with S. K. & B. C. Williams as to compensation. If this agreement takes effect by the employment of said Raines, or him and his brother, the said former agreement to be of no effect.
“Nothing herein shall interfere with the rights of said S. K. & B. C. Williams to their costs, recovered of said company, but they are entitled to all costs so recovered.
*600 “ In case of a compromise or settlement of said claim, the amount recovered is- to be divided in the same way hereinabove mentioned, one-half to me, and one-half to said S. K. & B. C. Williams' and said counsel.
“ Witness my hand and seal this: 18th day of May, 1886.
“ ORVILLE M. BARKLEY, [l. s.] ”
. The action was tried at the October, 1887, Monroe Circuit, before Mr. Justice Macomber and a jury, and on the eighteenth of that month a verdict for §7,000 damages was rendered. The record shows that George Raines and S. K. & B. C. Williams tried the case-for the plaintiff.
Fourteen days after the rendition of the verdict, October 31, 1887, S. K. & B. O. Williams and Raines Brothers entered into a contract, of which the following is a copy :
“ SUPREME COURT.
“ Whereas, on the 18th day of May, 1886, the said Orville M. Barldey agreed to pay S. K. & B. C. Williams the equal one-lialf of all sums and money recovered from said company in this action, or paid by it, for damages therein, for services, etc., in said action in lieu of all other compensation therein, as by the agreement of said Barkley, dated on said day, will more fully appear with its considerations and conditions.
“ Wow, therefore, said S. K. & B. C. Williams agree to pay to Raines Brothers, of Rochester (George Raines and Thomas Raines), the, one-half of what they' are to receive by said agreement of the damages in said action, when received by them, in consideration of the services of said George Raines and Thomas Raines, rendered and to be rendered in said action. - .
“ Said Raines Brothers agree to render their services and assist in retrying said case, if a new trial is granted therein, and as often as a new trial is had therein. If desired by said S. K. & B. C. Williams,' said George and Thomas Raines agree to argue the motion for a *601new trial before Judge Macomber and prepare brief therefor, and also, if so desired, agree to argue the case in the General Term and Court of Appeals, and prepare briefs therefor, although it is now contemplated that S. K. & B. C. Williams shall take care of and argue the case in the General Term and in the Court of Appeals,' which they are to do, unless they request the said Raines Brothers to argue it in either court when the latter agree to do so.
“ In consideration of the foregoing it is agreed that the said George and Thomas Raines shall at all times assist and render their services' as counsel in the case at all stages thereof when requested by said S. K. & B. C. Williams.
“ It is, however, understood’and agreed that any sums of money paid out in said case, or in necessary expenses incident thereto, or in preparing for trial, that are not taxable items, or are not reimbursed to said S. K. & B. C. Williams, by payment to them as costs, shall be first deducted from whatever amount is received from said Barkley before the same shall be divided between said S. K. & B. C. Williams and said Raines Brothers. Any necessary traveling expenses in said action of said George and Thomas Raines, or of said S. K. & B. C. Williams, shall be deducted from said half and paid to the person who has incurred them, before division.
“ Should a compromise and settlement occur, the fund aforesaid, or the amount received by said S. K. & B. C. Williams, shall be paid and divided as above stated.
“Dated October 31, 1887.
“ S. K. & B. C. WILLIAMS.
“ RAINES BROS.”
The court consented to entertain a motion made by the defendant for a new trial on the minutes, which, however, was not argued until July, 1892, four years and nine months after the rendition of the verdict. August 8, 1892, an order was entered denying defendant’s motion and granting it sixty days in which to serve a proposed case containing exceptions. November 21, 1892, the defendant appealed from the order denying its motion for a new trial, and July 12, 1898 (nearly eleven years after the rendition of the verdict), the case containing exceptions was settled and filed in the office of the clerk of the county of Monroe.
*602Between October, 1887, and July, 1898, much correspondence passed' between the plaintiff and his attorneys of record, in which, the plaintiff expressed his dissatisfaction with the delay and with the manner in which his attorneys Nvere conducting the case. The case "containing exceptions not having been settled or advanced in any way, the plaintiff, on June 23, 18198, personally served on his attorneys of record a demand that Frank 0. Sargent, an attorney of Syracuse, be substituted as the attorney for the plaintiff in that action in the jilace of S. K. & B. C. Williams, which, being refused, the plaintiff, June 27, 1898, through his attorney, Frank C. 'Sargent,.' served notice that he would move, July 9, 1898, at a Special Term held at Rochester, hi. Y., for an order substituting said Frank C. Sargent in the place of S. K. & B. C. Williams as the attorney for the plaintiff. July 9, 1898, Frank C. Sargent, for the plaintiff,, and S. K. & B. C. Williams, for themselves, appeared at said Special Term, and upon the application of S. K. & B. C. Williams, Frank C. Sargent opposing, the hearing of the motion was postponed until July 30, 1898. After the adjournment of the motion, and on July 12, 1898, the proposed case in Barkley v. The New York Central and Hudson River Railroad Company was settled and filed. Afterwards it was agreed that the .motion be heard July 27, 1898, on which day it was heai’d, and an order entered adjudging:
“It is hereby .ordered, that the motion to substitute Frank C. Sargent as attorney in this action in place of S. K. & B. C. Williams is denied, without costs.
“ It is further ordered, that Frank C. Sargent be permitted to file a supplemental brief and to assist in the argument for the plaintiff in the Appellate Division, upon;the argument of this case, providing said court will consent thereto.
“ It is further ordered* that the plaintiff’s attorneys shall notice said cause for argument at the next term of the Appellate Court, appointed to be held September 20th, 1898.”
From this order the plaintiff appealed to this court, where the appeal was heard in September, 1898, and December 9, 1898. The following order was granted: “ Order reversed, with ten dollars costs and disbursements to the'appellant, payable by the respondents, It is further ordered that it be referred to Hon. James C. Smith tp take evidence and report the same to the Special Term, with his *603opinion as to the terms upon which a substitution of attorneys shall be ordered, and either party is at liberty to bring on the hearing before the referee upon eight days’ notice.” (35 App. Div. 167) At the same term the appeal from the order denying defendants’" motion for a new trial on the minutes was argued, and December 9, 1898, it was affirmed, all the justices concurring, and a judgment was directed for the plaintiff on the verdict, with costs. (35 App. Div. 228.) December 15, 1898, a judgment was entered on this, decision for $11,686.50, damages, and for $379.13, costs; total, $12,065.63, damages and costs. Afterwards the defendant moved for a reargument of the case, and, in case a reargument was denied, for leave to appeal to the Court of Appeals, which motion was denied by a decision filed February 3, 1899 (37 App. Div. 632), and thus the judgment became a final one.
January 10, 1899, the parties, with their counsel, appeared before: the referee appointed by this court, on the motion to remove S. K. & B. C. Williams as attorneys. for the plaintiff and substitute in their stead Frank C. Sargent, and began to take evidence on the issues referred. Several hearings were had and a large amount of evidence, oral and documentary, taken. The plaintiff, his counsel, Frank C. Sargent, Stephen K. Williams, Byron C. Williams and Thomas Raines were examined and croés-examined at great lengtli in regard to the conduct of the case; the two contracts between the: plaintiff and S. K. & B. C. Williams and Raines Bros, were read in evidence, and every fact which the ingenuity of learned counsel could suggest as bearing upon the alleged misconduct of the attorneys of record and counsel in the management of this case, and every reason and excuse for their conduct, seem to have been fully developed before the learned referee, who, on March 30, 1899, filed his report in the office of the clerk of the county of Monroe, in which he reached the following conclusions :
“ The conclusion is, that the motion for a substitution of attorneys; should be granted, but upon the following terms, viz.:
“ 1. The sum of Three Hundred and Thirty Dollars ($330.00), which was agreed by the plaintiff to be paid out of the judgment, when collected, to Dr. Jacobson, for his services as a surgeon, should be paid by the plaintiff.
“ 2. The plaintiff should deposit Two Thousand Dollars ($2,000.00); . *604in court to the credit of the cause, or file a bond in that sum with two sufficient sureties to'be approved by a justice of the court,, conditioned for the payment of all costs and fees in the action which shall be found due to his original attorneys of record, and for services of counsel employed .by them at such sum as shall be adjudged a reasonable compensation therefor.”
These conclusions are preceded by ¡an exhaustive opinion discussing the questions of fact and law involved in the motion which justify the conclusions, in which opinion, hereunto annexed,* this court con7 curs and upon which the referee’s conclusions are affirmed.
*605It should be stated, in explanation of how the motion to confirm the report came on before this court instead of the Special Term, that on the 23d of May, 1899, the attorneys for the litigants stipulated that the order of the Appellate Division appointing a referee be amended so as to provide that the application for the confirmation of the referee’s report should be heard by the Appellate Division instead of at Special Term, upon which stipulation an order was entered by this court so amending the original order of reference.
. April 5, 1899, six days after the filing of the referee’s report, Stephen K. Williams, verified the complaint in action No. 2, which *606•contains substantially a statement of the facts hereinbefore recited, and demands a judgment that the three contracts hereinbefore set forth be adjudged valid, and that Orville M. Barkley be compelled to perform them specifically, and that he, his agents and attorneys, -be enjoined from receiving more than half of the damages, and from receiving any of the costs recovered by said judgment, and that the defendant, The Hew York Central and Hudson River Rail*607road Company, be restrained from paying to Orville M. Barkley any part of the costs entered in said' judgment, and from paying mire than half of the damages recovered by said judgment to Orville M. Barkley, his agent or attorney. In effect, by the complaint in action JSTo. 2, the plaintiffs seek to review the proceedings then pending for the determination of the rights of Orville M. Barkley and his attorneys and counsel and to annul the referee’s report. April 7, 1899, *608ujDon said complaint and an affidavit of Stephen K. Williams, verified April 5, 1899, an injunction order was granted restraining the defendants in action No. 2, as demanded in the complaint, and immediately thereafter, the date nbt appearing, the summons, complaint, affidavit and injunction order were served on the defendants. Orville M. Barkley moves. to vacate the injunction, and by the agreement of counsel the motion'is heard in the first instance by this court. This court has jurisdiction, if willing to exercise it, to hear and determine in the first instance any motion, contested or ex parte, that a Special Term may determine. The late General Term had appellate.jurisdiction and also the same original jurisdiction to hear and determine motions, ex parte or contested, that the Special Term had, unless otherwise provided by statute. (Drake v. Jones, 2 Code Rep. 67; Mason v. Jones, 1 Code Rep. [N. S.] 335 ; Anonymous v. Anonymous, 10 How. Pr. 353; Tracy v. Talmadge, 1 Abb. Pr. 460; In the Matter of Opening Seventh Ave *609 nue, 29 How. Pr. 180; Gracie v. Freeland, 1 N. Y. 228; Syracuse Savings Bank v. Syracuse, Chenango & N. Y. R. R. Co., 88 id. 110; Manderville v. Marvin, 30 Hun, 282, 287; 1 Whittaker Pr. [4th ed.] 38; 1 Tiff. & Smith Pr. 21; 1 Wait Pr. 317; 1 Rumsey Pr. 40.) “ From and.after the last day of December, one thousand eight hundred and ninety-five, the Appellate Division shall have the jurisdiction now exercised by the Supreme Court at its General Terms.” (N. Y. Const. art. 6, § 2.) Legislative acts or rules of court, if any, which attempt to deprive the Appellate Division of the jurisdiction formerly possessed by the General Term and secured to the Appellate Division by the constitutional provision above quoted, are violative of said provision, and are void. (People ex rel. The Mayor v. Nichols, 79 N. Y. 582.) Although the Appellate Divisions have jurisdiction to hear motions in the first instance, they are not required to, and will not, except in cases where some exigency *610seems to require that they shall do: so in the interest of justice. The motion to confirm the referee’s report had been heard at a Special Term held by one justice,' and the; motion to vacate the injunction,at a Special Term held by another justice, and it was desired by said justices and counsel that both motions be heard before the same court.
This court having reached the conclusion that the report of the referee should be confirmed, in which it is found that the plaintiffs in action No. 2 have lost all right, by their misconduct and delay, to have either of the contracts specifically enforced, and that the plaintiffs have lost their lien upon the judgment,-it follows that an injunction in action No. 2 should not be sustained restraining the New York Central and Hudson River Railroad Company from paying and Orville M. Barkley from receiving the amount of the judgment.
Again, in case a controversy arises involving questions of law and, fact, or both, which the Supreme Court has jurisdiction to hear and" determine upon a motion or in a special proceeding, as well as in an action, and the matter is determined upon the merits, upon a motion or special proceeding, after hearing all the contestants, and an order is entered which may be reviewed on appeal, such an order is as final and conclusive on the litigants and their privies as though the same question had been determined in an action. (Supervisors of Onondaga v. Briggs, 2 Den. 26, 33; Dwight v. St. John, 25 N. Y. 203; Demarest v. Darg, 11 Abb. 9; affd., 32 N. Y. 281; Matter of Petition of Livingston, 34 id. 555, 557; Brown v. The Mayor, 66 id. 385, 390; Smith v. Zalinski, 94 id. 519 ; Leavitt v. Wolcott, 95 id. 212, 222; Culross v. Gibbons, 130 id. 447 ; Matter of Davis, 7 Daly, 1; Matter of Roberts, 10 Hun, 253 ; Aldridge v. Walker, 73 id. 281; New York & N. J. Tel. Co. v. Met. Tel. Co., 81 id. 453 ; Freem. Judg. [4th ed.] § 325.)
The rule just stated does not apply to interlocutory orders made during the progress of an action involving some matter or question incidentally arising and not involving the merits of the controversy. The distinction between conclusive and non-conclusive judicial determinations made on motions and evidenced by orders is pointed out in New York & N. J. Tel. Co. v. Met. Tel. Co. (supra). Decisions made on motions to vacate injunctions, attachments and orders of arrest, though in some respects involving the merits, are not conclu*611sive,' and the same question may be reconsidered by leave of the court on fresh motions; neither are. such orders conclusive on the tribunal which ultimately determines the law and fact by a decision or verdict upon which a judgment is entered. When a motion is made in an action to set aside a judgment, for example, for fraud, and there is a sharp question of fact involved, the Special Term may and often does refuse to determine the question upon motion, and requires "the complaining party to bring an action. (Beards v. Wheeler, 76 N. Y. 213.) In the case at bar, neither party asked that the validity of the contracts, or the terms upon which Orville M. Barkley might have a new attorney substituted, be determined in an action, but both entered on the reference without objection.
The Supreme Court has jurisdiction to determine controversies arising out of the professional relations of attorneys and clients, and upon what terms attorneys shall be changed in pending actions, either upon motion or in a summary special proceeding. (Starr v. Vanderheyden, 9 Johns. 253; Merritt v. Lambert, 10 Paige, 352; affd. sub. nom. Wallis v. Loubert, 2 Den. 607; Barry v. Whitney, 3 Sandf. 696; Bowling Green Savings Bank v. Todd, 52 N. Y. 489; Matter of Wilhelmina Fincke, 6 Daly, 111; Hess v. Joseph, 7 Robt. 609; Matter of Doyle v. Mayor, 26 Misc. Rep. 61; Rule 10 of General Rules of Practice, and cases cited; 3 Am. & Eng. Ency. of Law [2d ed.], 409, et seq., and cases cited.)
In Hess v. Joseph and in Matter of Doyle v. Mayor (supra) it was held that an application for the removal of an attorney and the substitution of another in a pending action is not a proceeding in the action, and should not be entitled therein, but is a summary special proceeding, which seems to be the better practice. The adverse party in the action in which a substitution is sought has no interest in the question, is not entitled to notice, and the application involves no question in the action and is in no sense a proceeding in the action, but is a special proceeding. (Code Civ. Proc. §§ 3333, 3334.)
For a discussion of the procedure to compel attorneys to discharge their duties to their clients see chapter 38 of" the second edition of Fiero’s Special Proceedings.
The court having jurisdiction to determine, upon motion or upon ..a special proceeding, the rights of these litigants, and it having been . *612held that the attorneys and their privies have lost all lien upon, and claim to, any part of the judgment by virtue of their contracts above set forth, the injunction granted in an action brought tore view that determination cannot be sustained, and it is vacated* with ten dollars costs and disbursements.
Note,— The rest of the cases of this term will be found in the next volume, 43 App. Div.— [Rep.
All concurred, except Adams, j., not voting.
Upon reading and filing the report of the Hon. James 0. Smith the referee appointed herein, and the evidence taken before him,, and it appearing that Orville M. Barkley has paid Nathan Jacobson, M. D., $330, and has procured to be executed and approved a-bond for $2,000, as required by the report of said referee, it is ordered that, upon filing said bond in the office of the clerk of the county of Monroe, the referee’s report be and the same is hereby confirmed on the opinion of the referee, which is adopted as the opinion of this court, and that Frank O. Sargent be and he is hereby substituted as the attorney for the plaintiff in this action in the place of S. K. & B. O. Williams, who aire removed, with ten dollars costs-of the motion to confirm the referee’s report, together with the dis-' bursements incurred in this reference to be taxed by the clerk of the county of Monroe in favor of 'Orville M. Barkley and against Stephen K. Williams and Byron O. Williams. A certified copy of' this order to be entered in the office of the clerk of the county of Monroe.
Motion to vacate injunction granted, with ten dollars costs; a ' certified copy of this order to be entered in the office of the clerk of the/county of. Monroe.