31 N.Y.S. 291 | N.Y. Sup. Ct. | 1894
The lien of attorneys upon judgments recovered by them, and the proceeds thereof, did not have its origin in any statute. It grew out of the relation of attorney and client, and the injustice of allowing a client to take the proceeds of his attorney’s work and skill without paying him therefor. As was said in one case, the lien was invented to protect attorneys from the knavery of clients. The method of enforcing the lien was by a proceeding in the action itself. The money was required to be paid into court, and was held until the amount due to the attorney was ascertained and paid thereout. Goodrich v. McDonald, 112 N. Y. 157. It is true that when the said lien of attorneys had its origin, and for a long time thereafter, the compensation to attorneys was regulated by statute, and the only fees and charges which they could enforce were those prescribed by statute, so that the lien was for such fees and charges only. By the first Practice Code of this State the statutes (2 R. S. 623-631) which constituted the fee bill were repealed, and it was also indicated that “ all rules and provisions of law restricting or controlling the right of a party to agree with an attorney, solicitor or counsel for his compensation are repealed; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties.” It was also provided, however, that “ there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity for his expenses in the action, which allowances are in this act called costs.” Code Proc. § 303. It will be observed that nothing was here said concerning any lien of attorneys. It has, however, been uniformly held that such lien continued. Whatever controversy there has been on the subject has been in respect of the extent of the lien and the method of its enforcement. It would be waste of time to discuss the cases which have arisen concerning the extent of the lien-—whether it covered taxable costs only, or also included the compensation agreed upon ; for in 1889 our present Practice Code was so amended that for all compensation arising out of agreement the attorney ‘‘ has a lien upon his client’s cause of action or counter
The motion is, therefore, granted, the court to take testimony at some convenient time, or a reference may he taken if the parties agree to it. The money may. he paid into the Kings County Trust Company to the credit of the action to await further order.
Ordered accordingly.