Dean v. O’Flaherty 261 A.D. 1062

By stipulation it was agreed that recital of the order of November 17, 1938, was in error.

Order affirmed, with twenty dollars costs and disbursements. No opinion. Present — Martin, P. J., O’Malley, Townley, Untermyer and Dore, JJ.; O’Malley, J., dissents in part in opinion.

O’Malley, J.

(dissenting in part). The order fixing the amount of the attorney’s lien at $400 was not appealed from. While not a decree or order awarding the payment of money so as to make it a judgment within the purview of section 773 of the Civil Practice Act, nevertheless it was, in my opinion, an adjudication of the value of the services rendered.

The payments made by the former client should, therefore, not be directed to be returned, even though the orders for the client’s examination in supplementary proceedings and punishing him for contempt were improvidently made. I, therefore, dissent from so much of the order as directs the attorney to return to the former client the sum of $315; otherwise, I concur in the affirmance.