Gentile v. Koelbl , 26 A.D.2d 710 ( 1966 )

Staley, Jr., J.

Appeal from an order fixing and determining the compensation and disbursements of Karl A. Wohlgemuth, Esq., who was discharged by defendants Koelbl as their attorney during the pendency of the action to foreclose a mechanic’s lien. The proceeding was instituted by defendant Koelbl by petition and order to show cause returnable on April 12, 1965. On the return date, appellant appeared by his attorney, and submitted answering affidavit with detailed schedules of services performed and disbursements incurred. The court heard oral argument on the application for over an hour, at which time all the parties and their respective attorneys were personally present. After an examination in detail of all the files submitted on the application, the court rendered a decision determining the balance due for services and disbursements in the sum of $4,825.72 and impressed an attorney’s lien upon all papers in the attorney’s possession in that amount. The appellant at no time requested a formal hearing but, on this appeal, he contends that the court should have held a hearing before resolving the issues raised and further that the amount awarded was inadequate. Under the circumstances here, the appellant was offered a full opportunity to be heard and waived any right he might have had entitling him to a formal hearing. We do, however, find the award somewhat inadequate, though not to the degree asserted by appellant. Order modified, on the law and the facts, to increase the amount thereof to $6,500, with appropriate interest, and, as so modified, affirmed, with costs to appellant. Gibson, P. J., Reynolds, Taylor and Aulisi, JJ., concur.