and 118 New York State Reporter held that Honeywell street was a practical continuation of Blackwell street, and Bresky v. Third Avenue R. R. Co., 16 App. Div. 83, 45 N. Y. Supp. 108, where Roosevelt street, in the borough of Manhattan, and Baxter street, were held to be practically continuous. Under the doctrine of these cases the accident to this plaintiff occurred at a street crossing, and the law applicable to such a state of facts must control. The parties had equal rights, and each was bound to respect those of the other. It is established by the evidence that no effort was made to stop defendant's car, although it was going at a greater rate of speed than usual, until it had traversed one-half of the distance between the two crosswalks opposite the respective sidewalks of Hudson avenue. Although the car was 70 feet from the plaintiff at the time his wagon started to turn across the northerly track, the defendant's agents made no attempt to stop it until it had approached to within 25 feet of plaintiff's conveyance, too late to avoid the accident. These facts, having regard to the physical situation, presented the defendant's negligence as a question for the jury's determination, and to direct a verdict against the plaintiff was error. But it is urged that the law applicable to intersecting streets has no bearing upon the rights of the parties in this case, inasmuch as the plaintiff had not come through Flatbush avenue at all, but was at all times in Fulton street, where the collision occurred. I cannot believe such reasoning to be sound. The plaintiff was within the general area of a street crossing, where the rights of users of that territory were equal, and it should not concern us in what manner he came into the place or from what direction he approached it. In his lawful use of the highway he found himself there, and it cannot, in my opinion, be held to be the law that on one day if he came into the place from Flatbush avenue he had more comprehensive rights and privileges than on a day following, should he enter by way of Fulton street. The boundaries of an intersection of streets enclose a spot peculiar to the law, in that no paramount rights are known there, and no limitation of this doctrine should be indulged against a class of individuals or vehicles that enter from any particular point. A reference, again, to the map in evidence shows that had the plaintiff been proceeding in the usual manner northwesterly along the right side of Flatbush avenue, across Fulton street, and into the right side of Hudson avenue, his course would have been not widely different from that actually traveled by plaintiff from the point in the east-bound track of the defendant's road where, on the day of the accident, he turned northeasterly, and pointed for the northeastern curb of Hudson avenue and Fulton street. Had such been his course of travel, he would have crossed the west-bound track in Fulton street within about 10 feet from the point in that track where he did actually cross. This analysis of the directions and distances seems, of itself, quite sufficient to refute the argument that the law of intersecting streets is inapplicable to the facts of this case. But, if not, suppose that a stranger had been, on the day of the collision, traveling from Flatbush avenue into Hudson avenue along the route indicated above, and had been a few feet in advance of the plaintiff, they would both have been proceeding in the same general direction, the latter crossing. the west-bound track at a point about 10 feet west of that where the other crossed. And suppose, further, that defendant's motorman, approaching from the east, had seen both and the direction from which each came; if the position I take is fallacious, he might properly. have said, "That stranger, although but a few feet from the plaintiff, both within the area of these intersecting streets, is entitled to the benefit of the rule allowing no one paramount rights in this place, for he came out of the intersecting street; but, as against the plaintiff, my car has the better right here, for he turned into this district from Fulton street." The point of ingress should not be held to affect the rights of those who have occasion to use such intersections of streets. The judgment and order appealed from should be reversed, and a new trial granted. Judgment and order reversed, and new trial ordered, costs to abide the event. HIRSCHBERG, J., concurs. WARD and JENKS, JJ., dissent. BARTLETT, J., concurs in result. WOOD (87 App. Div. 101.) KANE et al. v. ROSE et al. (Supreme Court, Appellate Division, Second Department. October 22, 1903.) 1. ATTORNEYS-COMPENSATION-SUBSTITUTION. An order made by the court, on a substitution of attorneys, requiring that the clients pay the former attorney a certain sum within a time fixed, but not providing for any punishment in the event of failure to make the payment, is not objectionable as intimating that on failure to pay the clients would be punished as for contempt. 2. SAME-STATUTES-ATTORNEY'S LIEN. Code Civ. Proc. § 66, provides that the court, on a substitution of attorneys, may determine and enforce the attorney's lien. Held, that where clients proceeding have sought a substitution of attorneys, and the court has ordered a reference to determine the value of the services, and that such attorney have a lien for the amount due him, clients, having accepted the order of substitution, are bound by the directions as to the lien. 3. SAME-DIRECTION OF PAYMENT OF COMPENSATION. Code Civ. Proc. § 66, provides that from the commencement of an action the attorney has a lien on the cause of action, etc., for his compensation, and that the court may determine and enforce the lien. Held, that on the making of an order of substitution the court has authority to impose a condition that clients pay the amount due the attorney of record. 4. SAME REFERENCE. On a motion for a substitution of attorneys the court has authority to make a reference to determine the amount due the attorney as compensation. 5. SAME FAILURE TO PAY COMPENSATION-STATUTES-CONTEMPT. Code Civ. Proc. § 779, provides that, where a sum of money is directed by an order to be paid, if it is not paid within the time limited an execution against the personalty of the one in default may be issued. 14. See Attorney and Client, vol. 5, Cent. Dig. § 114. and 118 New York State Reporter Section 14, subd. 3, enacts that a court has power to punish by fine and imprisonment a neglect of duty where a party to the action fails to pay a sum of money ordered to be paid, where by law execution cannot be awarded for the collection of such sum. Held, that where, on a substitution of attorneys, an order is made requiring clients to pay the former attorney his compensation, the attorney in the event of failure to pay may have an execution. Appeal from Special Term, Suffolk County. Action by Thomas Kane and others against C. Gunther Rose, as the sole surviving administrator of the estate of John Manton, deceased, and others. From an order directing plaintiffs severally and jointly to pay Joseph Wood a certain sum for services rendered as an attorney, plaintiffs appeal. Affirmed. Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ. Martin T. Manton, for appellants. WOODWARD, J. Joseph Wood, an attorney and counselor of this court, was retained' by the plaintiffs to prosecute an action to set aside a certain conveyance of real estate. The action, after some delay, was brought on for trial at a Special Term of the Supreme Court, resulting in a dismissal of the complaint. The plaintiffs desired to appeal from the judgment, but were dissatisfied with their attorney, and made a motion for an order substituting Martin T. Manton. An order was granted making the substitution without requiring bonds for the protection of the lien of Mr. Wood under the provisions of section 66 of the Code of Civil Procedure. There being a dispute as to the amount due the latter, the order directed the appointment of a referee "to take proof as to the nature and terms of the retaining of Joseph Wood, Esq., as attorney for the plaintiffs herein, and the value of his services and necessary disbursements not already compensated for, and the amount so due to Mr. Wood, and to report the same back to the court with an opinion thereon"; and it was further ordered "that the said Joseph Wood have a lien to the extent of the amount allowed by said referee upon plaintiffs' cause of action, and all the pleadings, papers, and exhibits of the plaintiffs herein; and further order that no settlement of said cause of action be had or made except upon and after notice to said Joseph Wood." The referee appointed by such order entered upon the discharge of his duties, and found that there was owing to Mr. Wood the sum of $232.73, which report, with a modification, was confirmed by the court, and the order appealed from thereupon issued. This order provides that the plaintiffs "be and they hereby are directed to pay, as their joint and several obligation, to said Joseph Wood, Esquire, within twenty days from the date of the service of a copy of this order upon said Martin T. Manton, Esquire, attorney for said plaintiffs, the sum of two hundred. seven and seventy-three one-hundredths dollars ($207.73), the amount found due said Joseph Wood, Esquire, from said plaintiffs, on said reference, together with the sum of eighty-seven and ninety-five hundredths dollars ($87.95) fees and expenses of said reference." The plaintiffs appeal from this order, and urge that it was not contemplated by any of the parties that the court should make such an order, coupled, as it is, with an intimation in the opinion of the learned court that Mr. Wood may follow this order by a motion to punish as for a contempt if the same is not paid within the time limited. But the order itself does not provide for any punishment as for a contempt, and this court will not presume that any of its members will do that which is unlawful when called upon to act judicially. The plaintiffs accepted the order of substitution containing the provision for the reference, and that order, not having been appealed from, must be binding upon the parties in all of its terms and conditions. Section. 66 of the Code of Civil Procedure provides that the "court upon the petition of the client or attorney may determine and enforce the lien," and, the plaintiffs having invoked the equitable powers of the court in making a change of attorneys (Greenfield v. Mayor, 28 Hun, 320, 321), they must be deemed to have submitted to the jurisdiction (Yuengling v. Betz, 58 App. Div. 8, 10, 68 N. Y. Supp. 574), and they are bound to submit to any lawful order of the court. The court has directed them to pay a certain amount within 20 days after the service of the order, and this must be accepted as the terms upon which the order of substitution was granted. There is no doubt of the power of the court to make an order of substitution upon the condition that the plaintiffs shall pay the amount then due to the attorney of record, and the power to send the matter to a referee to determine the amount then due is established by authority. Yuengling v. Betz, 58 App. Div. p. 10, 68 N. Y. Supp. 574, and authorities there cited. In so far as the order appealed from is concerned, we are clearly of the opinion that the court had jurisdiction and power in the premises, and that the plaintiffs have no reason to complain. It may be proper to suggest, however, in view of the intimation in the opinion of the learned justice, that section 779 of the Code of Civil Procedure provides that, where a sum of money is directed by an order to be paid, if it is not paid within the time fixed by the order, or within 10 days after the service of the order, an execution against the personal property of the party required to pay the same may be issued by any party or person to whom the same is payable by the terms of the order (Halsted v. Halsted, 21 App. Div. 466, 467, 47 N. Y. Supp. 649), so that it is doubtful if there be any authority under subdivision 3 of section 14 of the Code of Civil Procedure to punish the plaintiffs as for a contempt of court. This subdivision limits the power of the court to punish as for a contempt for the "nonpayment of a sum of money ordered or adjudged by the court to be paid" to a "case where by law execution cannot be awarded for the collection of sum, or for any other disobedience to a lawful mandate of the court." The order appealed from is merely an adjudication that the sum mentioned in the order is due to Mr. Wood, with a direction that it be paid. If the plaintiffs fail to pay the same within the time limited in the order, Mr. Wood may issue an execution against the personal property of the plaintiffs, as was done in the case of Greenfield v. Mayor, supra, although the dictum would extend the power beyond this point. The limitations which we have suggested appear to be sanctioned by 84 N.Y.S.-8 and 118 New York State Reporter O'Gara v. Kearney, 77 N. Y. 423, 426, and Myers v. Becker, 95 N. Y. 486, 493, and authorities there cited. The order appealed from should be affirmed, with costs. Order affirmed, with $10 costs and disbursements. All concur. (87 App. Div. 139.) PEOPLE v. AMERICAN LOAN & TRUST CO. In re SIMMONS. (Supreme Court, Appellate Division, First Department. October 23, 1903.) 1. INSOLVENCY-DISSOLUTION OF CORPORATION-RIGHTS OF CREDITORS - RES JUDICATA. The decision of the court on appeal from an order of confirmation of the report of the referee in proceedings for the dissolution of a corporation, which disposed of the whole fund and directed it to be distributed among certain creditors, determined the rights of the creditors. 2. SAME-REPORT OF REFEREE-HEARING ON EXCEPTIONS. The report of a referee appointed in proceedings for the dissolution of a corporation, not only to take proof and report with his opinion as to claims for costs, expenses, and counsel fees, but to admit and reject creditors' claims, can only be reviewed on exceptions. 3. SAME-NOTICE TO CREDITORS. A creditor of a corporation in process of dissolution, who has not appeared before the referee appointed to state the account of the receiver, is not entitled to notice of the filing of the referee's report. 4. SAME EXCEPTIONS-PARTICIPATION IN BENEFITS. Only those unpreferred creditors of a corporation who except to the report of the referee in proceedings for its dissolution, allowing interest to preferred creditors, are entitled to participate in the funds which, by rulings on the exceptions, are turned from the preferred claims. 5. SAME-EXCEPTIONS-SUFFICIENCY. In proceedings for the dissolution of a corporation, a creditor who excepted to the report of the referee appointed to state the account of the receiver, which allowed interest on the claims of preferred creditors so far as that might prevent the payment in full of her preferred claims, sufficiently excepted to the report to entitle her to participate in the funds as an unpreferred creditor, on the court disallowing interest to the preferred creditors. Appeal from Order Entered on Report of Referee. Action by the people against the American Loan & Trust Company. From an order confirming the report of the referee for the distribution of the funds on dissolution of defendant corporation (80 N. Y. Supp. 627), certain creditors appeal. Modified. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ. H. B. Closson, for appellants Ritch and others. B. E. V. McCarty, for appellant Hawes. O. P. Metcalf, for appellants Manufacturers' & Traders' Bank and others. Clarence E. Thornall, for appellants Browing and others. Wm. S. Opdyke, for respondent receiver. James Dunne, for respondents Bauer and others. |