Schmidt v. Massapequa Co. , 240 A.D. 1011 ( 1933 )

Order in so far as an appeal is taken therefrom reversed on the law and the facts and the parts thereof directing a reference and appointing a referee struck out, with ten dollars costs and disbursements to appellant. On the facts disclosed it does not appear that respondent Levy or respondents Gould and Newman had a valid retaining lien as counsel for the attorney of record for plaintiff, who retained control of the action. They have elected to proceed against plaintiff and his attorney by action; and under those circumstances, with the ultimate rights of the parties a matter of doubt, the court will not lend its summary powers to settling a dispute which may be determined by the more orderly method of trial. Young, Kapper, Carswell and Davis, JJ., concur; Lazansky, P. J., dissents as to respondent Levy on the ground that the filing of the undertaking waived the right of appeal.