Order unanimously modified to provide that the lien of the respondent for his services, exclusive of disbursements, shall be an amount to be fixed by the court at the conclusion of the litigation and, as so modified, affirmed, without costs, and with the disbursements of both attorneys on this appeal to be paid out of their shares of any recovery. It does not appear in the record what fee agreement, if any, plaintiff has made with the substituted attorney. In Buckley v. Surface Transp. Corp. of N Y ( 277 App. Div. 224) we considered a somewhat similar situation. There we condemned the practice of an attorney arbitrarily charging 50% of the recovery, regardless of trial or settlement, or the nature or amount of services rendered. We here repeat that condemnation with the added statement that upon the facts here presented any fee charged by the substituted attorney should be based upon the excess recovered beyond the sum of $1,750 previously offered in settlement. Settle order on notice.
Concur — Peck, P.J., Breitel, Bastow, Botein and Rabin, JJ.