and 132 New York State Reporter stand the consequences. The lien was not affected by the adjustment, but leaped from the extinguished cause of action to the amount agreed upon in settlement." Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 502, 66 N. E. 395. But in the Fischer-Hansen Case there were two things which differentiated it from the case at bar. There was a settlement for a money consideration between the parties, and there was an extinguishment of the cause of action by the delivery of a release under seal. Upon these papers no pecuniary settlement has been made, no amount has been fixed as paid or to be paid upon which the agreed percentage could be calculated, or to which the lien could attach; nor has the cause of action or claim of the plaintiffs been extinguished. The suit has been discontinued, but there is no proof that the claim under their grandfather's will has been affected, or that when the trustees come to account, as some time they must, the questions raised in the complaint herein may not be raised by the plaintiffs. So that we have here a different question from those heretofore adjudicated. In Matter of King, 168 N. Y. 53, 60 N. E. 1054, stocks and bonds, assets of a trust estate, were removed into this state from the jurisdiction of the New Jersey court, and the New Jersey trustee employed attorneys in this state to recover the securities. After a long litigation they were successful, and the securities being in the possession of the Central Trust Company subject to the order of the court, and the trustee having disputed the attorneys' bill, they instituted a proceeding under section 66 of the Code of Civil Procedure to have the amount of their lien determined and enforced. It was upon those facts that the court said: "In this case the petitioners had a lien created by statute. The proceedings provided by the Code are instituted by a petition, and are in the nature of the foreclosure of a lien. The Special Term undoubtedly could have retained the proceedings, tried out the question as to the value of the petitioners' services, and determined the rights of the parties without a referee. but the petitioners were entitled to have their rights determined by the court either with or without the aid of a referee. The court could not properly, in the exercise of its discretion, deprive the petitioners of this remedy. The remedy given is equitable in character, and we think the equity side of the court has jurisdiction." In Matter of Regan, 167 N. Y. 342, 60 N. E. 658, a decree had been obtained and entered in the Surrogate's Court which had been satisfied in derogation of the rights of the attorney, and it was held that the surrogate had power to protect the lien of an attorney upon the judgment or decree, and had power to vacate the satisfaction of the decree. In Matter of Fitzsimons, 174 N. Y. 15, 66 N. E. 554, in a proceeding to compel an accounting by an administratrix in the Surrogate's Court, a collusive settlement was had behind the attorney's back. Upon the consent and release so obtained a motion was made to approve the account. Upon that motion the attorney presented a petition setting forth facts entitling him to a part of any recovery to which his clients would be entitled upon such accounting, and to compensation as attorney for the contestants. He also asked that his rights as such attorney under the agreement between himself and the contestants be determined in that proceeding and the proceeding continued for that purpose. The. court said: "That he had a right to present such a petition to the Surrogate's Court, and that it was the duty of the court to continue the proceeding for the purpose of enabling him to establish his rights to the compensation claimed, especially as his client was insolvent and the alleged settlement established by the plain provisions of the statute and the decisions of this court. But the Appellate Division dismissed the petition, denied his right to establish such lien before any evidence as to the facts had been given, and with no proof before it except that set forth in the affidavits used upon the motion. The Appellate Division erred in dismissing the petition and deny. ing him the relief sought, when there had been no investigation or trial of the facts." In Smith v. Acker Process Co., 102 App. Div. 170, 92 N. Y. Supp. 351, Mr. Justice Williams, after reviewing the case, said: "It seems to us from a consideration of these late expressions of the Court of Appeals that we should not favor the continuance of an action for the benefit of the attorney's lien. Its only object would be to arrive at the attorney's compensation in a case where there had been an agreement with the client for a percentage of the recovery, and even in such a case the result of a trial after a settlement would hardly be a fair indication of what the recovery would have been in the absence of the settlement which was comtemplated by the agreement originally made. It seems to us even in such a case a more satisfactory determination would be arrived at by the court with or without the aid of a referee under section 66." In the Fischer-Hansen Case, 173 N. Y. 492, 66 N. E. 395, it was held that a cause of action was not the property of the attorney, but of the client, and that the existence of the lien does not permit the plaintiff's attorney to stand in the way of a settlement. Applying these cases to the facts now before us, we think that the court below was right in making the order of discontinuance appealed from; that the action should not have been continued for the mere purpose of fixing the amount of the attorney's compensation. We think, also, that the attorney, having the contract with his clients that he did, had a right, which the court has no discretion to refuse, to have the amount due him as between himself and his client fixed under the provisions of section 66 of the Code. The contract still exists, and the claim of the client does not appear to have been extinguished. We think that inasmuch as it does not appear that any sum was paid or agreed to be paid in settlement, and as, therefore, the lien only attached to the claim or cause of action, so far as the defendants are concerned there is no lien to be determined or enforced. So far as they are concerned, it is a shadow without substance. Further, as the question is now between the attorney and his clients, we should not treat the attorney's answering affidavit on the motion for an order of discontinuance, which does not appear to have been served upon his clients and to which they have not interposed an answer, as a petition under section 66, but should follow the course taken in Smith v. Acker Process Co., supra, and grant leave to institute such proceedings to the end that upon proper papers the questions may be squarely raised between the interested parties and decided by the Special Term on the facts. With this leave, the order appealed from should be affirmed, with $10 costs and disbursements to be paid by the appellant. All concur. (113 App. Div. 232) and 132 New York State Reporter In re WETMORE. (Supreme Court, Appellate Division, First Department. May 11, 1906.) 1. TRUSTS-APPOINTMENT PROCEEDINGS-PARTIES. An order appointing a person to execute a trust cannot be made, without notice to the beneficiaries and those entitled to the remainder of the trust estate. [Ed. Note. For cases in point, see vol. 47, Cent. Dig. Trusts, § 208.] 2. SAME-REMOVAL OF TRUSTEE--AUTHORITY OF COURT. On an application to vacate the appointment of a trustee to execute a testamentary trust, the court appointed a referee to take proof of the facts stated in the application. The beneficiaries, when subsequently made parties, asked that the order of reference be affirmed. Held, that the order of appointment of the referee, though irregular because made when the beneficiaries were not parties, would not be vacated. 3. SAME. On a petition to vacate an order appointing a trustee to execute a trust created by a will, appointing trustees, and providing that on the death of any trustee, the remaining trustee might appoint a trustee, etc., it appeared that the surviving trustee, in an instrument executed by her mark, appointed the petitioner trustee. The instrument was not recorded until seven years after its execution, though the will provided that appointments should be recorded. The petitioner waited 10 years after the purported execution of the instrument before presenting it to the court to be enforced. Held, that the court properly appointed a referee to take proof of the allegations in the petition. Appeal from Special Term, New York County. Petition by Katherine B. Wetmore to vacate an order appointing the Continental Trust Company trustee of the trust created in the will of Samuel Wetmore, deceased. From an order appointing a referee to take proof of the facts stated in the petition, the petitioner appeals. Affirmed. Argued before O'BRIEN, P. J., and INGRAHAM, McLAUGHLIN, CLARKE, and HOUGHTON, JJ. Lewis L. Delafield, for appellant. INGRAHAM, J. One Katherine B. Wetmore, of the city and county of New York, presented a petition to the Supreme Court, alleging that by an order entered on the 10th day of July, 1899, and an order entered on the 23d day of August, 1900, the Continental Trust Company, of the city of New York, was appointed to execute a trust provided for by the will of Samuel W. Wetmore, deceased. This trust consisted of $100,000, the income thereof to be paid to the testator's son, William B. Wetmore, during his life, who was authorized to dispose of the trust property by a last will and testament; but upon the decease of William B. Wetmore, without exercising his power of appointment, the trust fund was to go to his next of kin. The trustees named in this will are all dead, and by the order sought to be vacated in this proceeding the trust company was appointed to execute the trust. The will of the testator provides that: "In case of the decease, removal or inability of any such trustee, then I authorize and request the acting or remaining trustees or trustee of any such trust (with the concurrence of the party or parties beneficially Interested in the same, if of full age and competency, but otherwise of their own motion) to appoint by deed such other suitable, competent and discreet person or persons as he or they may think proper, to fill the vacancy or vacancies caused as aforesaid, provided that the appointment of any such trustee and his acceptance of the office or duty of such trustee shall be made in writing and duly proved or acknowledged and recorded in the office of register or filed in the office of the clerk of the city and county of New York, and that proper conveyances or transfers of title be executed so as to carry such appointments into full effect." There is annexed to the petition what purports to be an instrument executed by Sarah T. Wetmore, the last surviving trustee, appointing the petitioner trustee. This instrument purports to be executed by the mark of Sarah T. Wetmore, the last surviving trustee, and its execution as to said Sarah T. Wetmore was proved on the 27th day of April, 1896, by the subscribing witness to the instrument, but was not acknowledged or its execution proved by the other parties, to the instrument until March and June, 1903, nor does it appear when they executed it; and it was not recorded until July 3, 1903. It purports to be dated over three years before the first order sought to be vacated was entered. Mrs. Wetmore lived for some time after this paper was executed, but during her life the appointee made no attempt to act as trustee, nor did she appear and oppose the order appointing the trust company to execute the trust, and, 10 years after it purports to have been executed, it is presented to the court for the first time to be enforced. When this application was presented to the court, it was on notice to the trustee; the children of the life beneficiary not having received notice. The rule is well settled that no order can be made in relation to a change of trustees, or the appointment of a person to execute a trust, without notice to the beneficiary and those entitled to the remainder. In opposition to this application, the trust company appointed to execute the trust submitted an affidavit stating that the children of William B. Wetmore would be entitled to the fund, in the event that the life beneficiary should die without exercising the power of appointment; whereupon the court made an order directing. that these children should be made parties to this proceeding, and also appointing a referee to take proof of the facts stated in the application. The petitioner appeals from so much of the order as appoints a referee to take proof of such facts. The circumstances disclosed which surrounded the execution of this instrument, the fact of the relationship of the person appointed trustee to the life beneficiary, the further fact that for years the life beneficiary, as the executor of the last surviving trustee, has had the securities of this trust in his possession, and has refused to obey the order of the court and turn these securities over to the new trustee, keeping out of this state with such securities, in defiance of the law of this state and of the orders of the courts of this state, might have justified the court in refusing to entertain any application of this kind until the securities in which the estate is invested were restored to the legal custodian by the life beneficiary. But as the trust company has not appealed from this order, but asks that it be affirmed, it is not necessary at this time to express any further opinion upon that question. The and 132 New York State Reporter appointment of a referee was irregular, in that the persons who would be entitled to the trust property on the death of the life beneficiary were not parties to the proceeding; but as it appears that they have been made parties to the proceeding, and have appeared therein, and on this appeal have submitted a brief asking that the order so far as it appoints a referee be affirmed, there is no reason for setting it aside until they could be heard; and, as we are of the opinion that it would have been error for the court to grant this application without a full disclosure of the facts under which this alleged appointment was executed, we think it was proper for the court to order such an investigation. It follows that the order appealed from is affirmed, with $10 costs and disbursements. All concur. (112 App. Div. 751) CADIGAN v. GLENS FALLS GAS & ELECTRIC LIGHT CO. (Supreme Court, Appellate Division, Third Department. May 2, 1906.) 1. MASTER AND SERVANT-INJURIES TO SERVANT-SAFE PLACE TO WORK. Where the superintendent of defendant gas company ordered plaintiff's general foreman to attach a valve on a six-inch gas main Y while the gas was on, without providing a rubber bag as usual to prevent the escape of gas from the pipe, knowing that the work was dangerous, and plaintiff was without knowledge of the danger, and was injured by an explosion which followed, whether defendant was guilty of negligence in failing to provide plaintiff with a reasonably safe place in which to work was for the jury. [Ed. Note. For cases in point, see vol. 28, Cent. Dig. Master and Servant, § 1014.] 2. SAME-KNOWLEDGE OF PLAINTIFF. In an action for injuries to a servant while assisting in attaching a valve to a six-inch gas pipe Y while the gas was turned on, whether plaintiff, from his knowledge of the business and his familiarity with the situation, knew or should have known that the gas was on, and that the work was dangerous, was for the jury. [Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Master and Servant, §§ 1072, 1096.] 3. SAME-CAUSE OF ACCIDENT-EVIDENCE. Where, in an action for injuries to a servant by an explosion of gas alleged to have been caused by contact of gas escaping from defendant's mains with a gas jet on the floor above, there was evidence that no spark alleged to have been emitted by a chisel which plaintiff's fellow servant was using on the gas pipe was seen prior to the explosion, but that the workmen heard an explosion before they saw a light, a nonsuit was not sustainable on the ground that the explosion was caused by the chisel spark. 4. SAME-FELLOW SERVANTS. Where a master was negligent in putting his servant in a place surrounded by dangers unknown to and unexpected by the servant, the master could not shield itself from liability for injuries to the servant by proof that the act of plaintiff's fellow servant brought about the injury which the hidden dangers of the place made probable. 5. SAME ASSUMED RISK-QUESTION FOR JURY-EMPLOYERS' LIABILITY ACT. Where an action was brought by a servant for injuries by an explosion, under Employers' Liability Act, Laws 1902, p. 1748, c. 600, and plaintiff testified that he had no knowledge of the danger, that he believed that |