SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
March 3, 1969
FRANK A. KRUPICKA, RESPONDENT,
NEW YORK TELEPHONE COMPANY ET AL., DEFENDANTS. ROBERT A. PABIAN ET AL., APPELLANTS
In a negligence action to recover damages for personal injuries, plaintiff's former attorneys appeal from an order of the Supreme Court, Queens County, dated December 15, 1967, which denied their application for a fee.
Hopkins, Acting P. J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.
The findings of fact below are not affirmed. The issue of appellants' right to compensation was decided largely upon affidavits. The issue should be resolved only after a hearing in which sworn testimony and other evidence is received, subject to cross-examination (Matter of Weitling, 266 N. Y. 184; Matter of Long, 287 N. Y. 449). Appellants' right to compensation revolves around questions of judgment in prosecuting the action. This is clearly distinguishable from Automatic Bedding Corp. v. Ortner (26 A.D.2d 664) where the discharged attorneys' undisclosed conflict of interest was apparent upon the papers.
Order reversed, on the law, without costs, and application remanded to said court for further proceedings not inconsistent herewith.
© 1998 VersusLaw Inc.